The Queen -on the application of- Majestic Group Ltd v Secretary of State for Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Mr James Strachan |
| Judgment Date | 29 July 2022 |
| Neutral Citation | [2022] EWHC 2820 (Admin) |
| Docket Number | No. CO/2325/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 2820 (Admin)
Mr James Strachan QC
(Sitting as a Deputy Judge of the High Court)
No. CO/2325/2022
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr C Jacobs (instructed by Bar Public Access Service) appeared on behalf of the Claimant.
Mr J Darby (instructed by the Government Legal Department) appeared on behalf of the Defendant.
( via Microsoft Teams)
THE DEPUTY JUDGE:
This has been a hearing on a return date following the grant of an urgent interim injunction by Thornton J on 28 June 2022 restraining the destruction of 25 imported cedar trees that are currently on the claimant's premises.
The proceedings arise out of a Destruction Notice issued by the defendant through the Plant Health and Seed Inspectorate dated 29 April 2022 under Regulation 8 of the Official Controls (Plant Health and Genetically Modified Organisms) (England) Regulations 2019, which I will refer to as the “2019 Regulations”.
The Notice, Serial No. 18/2904/2022-01, requires the claimant to destroy 25 cedar trees that were imported between December 2021 and February 2022 by the claimant from Cholat nursery in Belmont-Trammonet in France. It applies to two Cedrus libani, four Cedrus deodara and 19 Cedrus atlantica. It was issued on the basis that the defendant's inspector had reasonable grounds to suspect that the trees in question were infested with Thaumetopoea pityocampa, otherwise known as pine processionary moth (“PPM”) a quarantine harmful pest.
It required the cedars to be destroyed by incineration or deep burial at a registered landfill site by no later than 17.00 hours on 6 May 2022 with such destruction to be witnessed by a plant health and seed inspector.
The claimant disputes the lawfulness of that decision on various grounds and obtained an interim injunction restraining the requirement for the destruction of the trees.
The return date was originally set for 7 July 2022, but was heard at the request of the defendant on a later date and came before me.
The learned judge who granted the injunction did so at a hearing that was held ex parte and without notice to the defendant, although the claimant had notified the defendant of its intention to seek an injunction in correspondence which preceded that hearing. It was attended by Mr Jacobs, who appeared for the claimant then, as he has done, again, at the hearing before me. He helpfully explained that the judge granting the injunction had not had the opportunity to read the full contents of the application bundle that the claimant had compiled containing the pre-action protocol correspondence. As Mr Jacobs explained, the time available for the hearing of that application for an injunction was very limited, commencing at around 4 p.m. Mr Jacobs, therefore, concentrated on what he regarded as the key documents for the judge to consider in the limited time available, including taking the Judge to the photographs of the mitigation measures which have been put in place in respect of the trees to which I will return shortly.
I have had the benefit of being able to consider the documents filed by both the claimant and the defendant, including further witness evidence from both parties, which I permitted to be adduced at the hearing, along with helpful written and oral submissions from both Mr Jacobs and Mr Darby, who appears on behalf of the defendant. However, as is often the case in situations of applications for urgent interim relief, the time has necessarily been limited for me to consider and now give judgment on this application. I have sought to do so as quickly as possible for the benefit of both parties. This is, therefore, an oral judgment giving my decision on whether the injunction should be continued. It has not been possible in the time available to me to have prepared a written judgment dealing fully with all of the evidence and submissions that were made, but I have considered them all and I am concentrating on what I understand to be the key issues in contention and the essential issue of whether the injunction should be continued in delivering this oral judgment.
It that context it is important to note that the urgent interim injunction was granted in the context of a proposed judicial review claim by the claimant against the defendant in respect of its regulatory functions under the 2019 Regulations. Whilst the claimant has filed a judicial review claim, as things stand today the time for filing of an acknowledgement of service by the defendant has not yet expired. Consequently the question of whether or not permission should be granted for this claim to proceed is not technically before me. However, both Mr Jacobs and Mr Darby agreed at the hearing that one of the key tests as to whether an injunction should be continued would in this case be dispositive of whether permission should be granted for the claim to proceed; and both agreed that, save in a limited respect, namely a dispute over the valuation of the trees in question, neither party had further evidence on the core issues that they would wish to produce for the purpose of deciding the question of permission. So I will return to the question of permission at the end of this judgment dealing with the injunction.
The Key Facts
I turn to the key facts. The claimant is the owner of a large tree nursery situated on a 27-acre site near to St Albans. It has been established for over 20 years and the claimant states that it is the largest tree nursery open to members of the public in the United Kingdom.
The site contains some 12,000 trees of over 400 varieties, which are kept predominantly in what are described as “air pots”. The claimant imports trees from other countries for its stock. In that respect, the claimant prides itself on having worked closely in the past with the defendant to improve bio-security in respect of the importation of trees into the United Kingdom.
Mr McCurdy for the claimant, who has given evidence in the form of three witness statements in these proceedings and which I have read in their entirety, has dealt with the facts in greater detail. The following is only a brief summary of the evidence he has provided. Amongst other things, he explains that he travels abroad to identify trees that he wishes to import, tagging those trees that he regards as suitable. He identifies in his witness statement that he has acquired considerable experience in that activity. He has explained that he visited the Cholat nursery in France between 17 to 18 August 2021 for the purpose of identifying a number of different species of trees that he wished to import, including both pine and cedar varieties. For reasons that he explains in more detail in his evidence, his own preference is to make such visits at a different time of the year than August in order to enable him to view trees at a time when, for example, indications of pine processionary moth or PPM would be capable of being seen. However, given the travel restrictions which previously existed in consequence of the COVID-19 pandemic, along with uncertainty as to whether those restrictions might come about again, on this occasion he visited in August and identified trees that he considered would be suitable for importation.
Between December 2021 and February 2022, the trees he had selected were imported from the Cholat nursery to his nursery, including the 25 cedar trees to which I have already referred, 15 pine trees and one Abies concolor, a white fir from the pine family.
On 11 February 2022, the manager of claimant's premises noticed the presence of six PPM nests on the branches of the pine trees that had been imported.
Responsibly, and importantly, the claimant reported this sighting to the plant health authority. I say importantly because it is clearly important that those involved in the importation of trees that might be an avenue for the introduction of harmful pests to the United Kingdom do exercise vigilance in the way in which the claimant did and notify the relevant authorities in the event of spotting harmful pests that might otherwise be capable of spreading within the UK and causing significant harm to the health of affected parts of the ecology of this country, as past experience in respect of other pests, such as oak processionary moth, demonstrates.
I should also say at the outset that, having read all of the evidence, it seems to me that the claimant and Mr McCurdy should be applauded for their responsible attitude in notifying the plant health inspector of the presence of the PPM on the imported trees so as to enable the rapid containment and, ultimately, destruction of those pine trees with the potential threat that they represented. Whilst Mr McCurdy now feels very strongly that the relevant authorities...
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