Natural England v Cooper

Landlord and tenant – Agricultural land – Injunction – Appellant seeking final injunction to prevent respondent farmer cultivating fields to protect archaeological features – Respondent arguing claim conflicted with rights under tenancy agreement – Judge refusing claim – Appellant appealing – Whether appellant 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 – Appeal allowed The respondent farmed 67 hectares at Croyde Hoe Farm, Croyde Hoe, Devon, owned by the National Trust. The respondent 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 mainly arable fields. A dispute arose concerning archaeological features on or under the farmland. The appellant (Natural England) sought to protect those features by seeking injunctive relief to prevent the respondent cultivating the fields and the court granted an interim injunction. In 2021, the respondent had been convicted of failing to comply with a stop notice served under the Environment Impact Assessment (Agriculture) (England) (No 2) Regulations 2006 but he proceeded to plough the fields. Therefore, the appellant considered that only effective way to procure compliance with the regulations was by a final injunction. The judge dismissed the claim holding that the appellant lacked power and standing to bring the claim for an injunction in its own name: [2024] EWHC 625 (KB); [2024] PLSCS 70. The appellant appealed contending that: (i) as a statutory corporation it might, under common law, do anything reasonably incidental to its express powers; (ii) under section 13(1) of the Natural Environment and Rural Communities Act 2006, it might do anything that appeared to be conducive or incidental to the discharge of its functions including under the 2006 Regulations; and (iii) the judge erred in adopting too narrow an interpretation of “landscape” in section 2(2)(b) of the 2006 Act. Held: The appeal was allowed. (1) The word “functions” in section 13(1) of the 2006 Act was used in a broad sense to embrace all the duties and powers, the sum total of the activities, parliament had entrusted to the appellant. Section 13(2) of the 2006 Act gave the appellant specific powers inter alia to enter into agreements, acquire or dispose of property, and borrow money. Plainly, the appellant had to be able to sue and defend itself in litigation regarding such matters. Section 13 conferred on the appellant a power to litigate which was incidental or conducive to its statutory functions generally. The question was whether the present claim fell within an incidental power to litigate in relation to any of the appellant’s functions under the 2006 Regulations. (2) The appellant did not stand in the same position as a member of the public seeking to enforce the criminal law by restraining the commission or repetition of criminal offences. Instead, Parliament had imposed on the appellant responsibilities as the regulator under the 2006 Act in a series of specific, interlocking provisions. It had not brought its claim simply in order to give effect to a broad general purpose of the kind which in London Dockland Development Corporation v Rank Hovis Ltd (1986) 84 LGR 101 was found to be insufficient to provide standing. In England the legislature had entrusted to the appellant as the controlling authority, or regulator, an integrated set of measures under the 2006 Regulations, and imposed on it responsibility for a number of key functions, in order to comply with the EIA Directive. (3) In Broadmoor Special Hospital Authority v Robinson [2000] QB 775, the court said that it was rare for a statute to provide expressly that a particular public body might institute proceedings to protect specific public interests. If a public body was given responsibility for performing public functions in a particular area, it would usually be implicit that it was entitled to apply for an injunction to protect its special interest in the performance of those functions. That principle applied to the responsibilities for the protection of the environment under the 2006 Regulations which parliament had entrusted to the appellant. Section 13(1) of the 2006 Act conferred an incidental power on the appellant to apply for an injunction to protect its interest in the discharge of those responsibilities, or functions. (4) The appellant was responsible for securing that relevant EIA projects were subjected to the EIA process leading to a decision on whether they should be given consent to proceed. It was also given specific responsibilities for enforcing that regime. The statutory scheme was sufficient to give the appellant standing to seek an injunction of the kind sought in the present case to secure compliance with the 2006 Regulations, without having to invoke the assistance of the Attorney General. Accordingly, the appellant had an incidental power under section 13(1) of the 2006 Act to bring the claim for an injunction. (5) Although it was unnecessary to determine the overall ambit of the word “landscape” in section 2 of the 2006 Act, the court was doubtful about the judge’s approach to the meaning of the word “landscape”. It was too narrow in that he excluded any sub-surface archaeology which had no visual effect on topography or the surface of the landscape. There was a historical component to the understanding of landscape which did not have to be perceptible to the eye. The appellant’s general purpose was concerned with the conservation, enhancement and management of the natural environment (section 2(1)). It included “promoting nature conservation”, which included the conservation of geological or physiographical features (section 30(1)). The appellant’s purposes were not, therefore, limited to what took place on the surface of the land. Biodiversity might be affected by what was occurring below the surface. A purposive approach was often applied to language concerned with environmental protection. (6) But for his conclusion that the appellant lacked power and standing to obtain the relief sought, the judge would have granted a permanent injunction. That was undoubtedly the right outcome in all the circumstances of this case. The respondent had not advanced any point which could justify a refusal of an injunction by the court. The judge was entitled to find that the respondent had made it plain that, in the absence of that injunction, he would persist in cultivating the land in breach of the 2006 Regulations, notwithstanding the availability of criminal sanctions. Accordingly, there was no need for the matter to be sent back to the High Court for a further hearing before a permanent injunction could be granted.    Richard Honey KC and Jonathan Welch (instructed by Natural England Legal Services) appeared for the appellant; The respondent appeared in person. Eileen O’Grady, barrister Click here to read a transcript of Natural England v Cooper