Natural England v Cooper

Landlord and tenant – Agricultural land – Injunction – Claimant seeking final injunction to prevent defendant farmer cultivating fields to protect archaeological features – Defendant arguing claim conflicted with rights under tenancy agreement – Whether claimant having power and standing to bring civil claim under Natural Environment and Rural Communities Act 2006 or Environment Impact Assessment (Agriculture) (England) (No 2) Regulations 2006 – Claim dismissed The defendant farmed some 67 hectares at Croyde Hoe Farm, Croyde Hoe, Devon, owned by the National Trust. The defendant held a periodic tenancy which continued from year to year granted under the Agricultural Holdings Act 1986. Approximately 30 hectares was made up of nine fields of mainly arable land. A dispute arose concerning archaeological features on or under the farmland including: the presence of flint tool artefact scatters dating from the Mesolithic period; and the widespread survival of remains and structures from a World War II training area closely associated with the D-Day landings. The claimant (Natural England) sought to protect those features by seeking injunctive relief to prevent the defendant cultivating the fields. The court granted an interim injunction in May 2023. The claimant applied for final injunctive relief by reference to the risk of ongoing breaches by the defendant of the Environment Impact Assessment (Agriculture) (England) (No 2) Regulations 2006. In 2021, the defendant had been convicted of failing to comply with a stop notice served under the 2006 Regulations. The claimant alleged that he had proceeded nevertheless to plough the fields. It considered that the only effective way to procure the defendant’s compliance with the 2006 Regulations was by obtaining a final injunction. The defendant argued that the claimant had no grounds for invoking the 2006 Regulations and opposed the continuation of the injunctive relief on the basis that it conflicted with his rights under the tenancy agreement. Held: The claim was dismissed. (1) The claimant was established by the Natural Environment and Rural Communities Act 2006. It was clear from section 2(1) that the focus of the claimant was upon the “natural environment” of England. Its general purpose was the conservation, enhancement and management of the natural environment. At first sight, it appeared that the preservation of historic or archaeological artefacts was not obviously within the claimant’s remit.  However, that was subject to the non-exhaustive list of subordinate purposes identified in section 2(2), in particular, what was included within the concept of landscape conservation.  Section 2(2)(b) provided that the general purpose included conserving and enhancing the landscape. The 2006 Act itself did not contain any definition of “landscape”.  However, section 30 defined “nature conservation” to mean “the conservation of flora, fauna or geological or physiographical features”. And the plain meaning of the word “landscape” was generally understood to comprise the visible features, or appearance, of the land in question when viewed from a certain distance.  Section 2(2)(b) did not confer upon the claimant the purpose or function of conserving sub-surface Mesolithic flints or such flints scattered on the surface of the fields. They were not part of the landscape and, on that basis, did not form part of the natural environment for the purposes of section 2(1). On the other hand, WWII dummy pillboxes and any remaining associated slit trenches were part of the landscape and could be said to be part of the natural environment within the claimant’s conservation powers. (2) Section 9 conferred “other functions” upon the claimant which included incidental powers under section 13. In particular, the claimant might do anything that appeared to it to be “conducive or incidental” to the discharge of its functions. The subjective element within section 13(1) (“anything that appears to it”), and of section 13(2), gave the claimant a degree of discretion in relation to the exercise of the relevant incidental power. However, the existence of such a power rested upon an anchor function. The objective support for a particular power, which was not expressed, had to be on the basis that it was conducive or incidental to the exercise of a function conferred by the legislation. The language of section 13(1) did not support a power in the claimant to bring the present proceedings. Bringing a civil claim would involve the exercise of an independent power or the discharge of a free-standing function by the claimant. Section 13(1) did not provide for that. The 2006 Regulations implemented the EIA Directive on the assessment of the effects of certain public and private projects on the environment. The plain and ordinary meaning of section 1(2) was that it extended to functions conferred upon the claimant by secondary legislation made under other statutes. On that basis, the 2006 Regulations were potentially relevant as the source of a “function” to which a power to sue for injunctive relief might be anchored.   (3) The 2006 Regulations extended the claimant’s regulatory remit to items of “archaeological heritage” that could not properly be said to be part of the “landscape”. Regulation 30A confirmed that an enforcement undertaking was a sanction available to the claimant for offences under regulations 22 and 23 (carrying out works without a screening decision or consent or in breach of a condition) but not the other offences under the 2006 Regulations (which included contravening a stop notice under regulation 26). That power militated against it having any incidental power to sue in its own right for injunctive relief.   (4) The 2006 Regulations were made under an “other enactment” for the purposes of section 1(2) of the 2006 Act. Alongside the Act, the regulations were therefore the potential source of a “function” to which the claimant might consider a power to sue for injunctive relief was conducive or incidental. However, it was difficult to describe a power in the claimant to sue for injunctive relief as conducive or incidental to functions discharged by the claimant under the 2006 Regulations, when the regulations themselves contained an exhaustive range of consequences for those who sought to frustrate them. (5) Like section 12 of the 2006 Act, the 2006 Regulations only expressly recognised the claimant’s standing in the criminal courts. The secretary of state had not made a direction under section 16(1) of the 2006 Act (by statutory instrument) that the claimant might bring proceedings for injunctive relief. Therefore, a power in the claimant to bring such proceedings was no more conducive or incidental to its functions under the 2006 Regulations than it was to the claimant’s power to prosecute under section 12. (6) Had the court concluded that the claimant did have the power to bring the claim, it would have granted final injunctive relief on the basis that, under the 2006 Regulations to which the relevant language of the EIA Directive was transposed, “archaeological heritage” was deemed to be an aspect of the environment and, so the regulations presumed in making the claimant the decision-maker under the regulations, part of the “natural environment” for the purposes of section 2 of the 2006 Act. Heather Andersen (instructed by Browne Jacobson LLP) appeared for the claimant; the defendant appeared in person. Eileen O’Grady, barrister Click here to read a transcript of Natural England v Cooper