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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Natural England v Cooper (Rev1) [2024] EWHC 625 (KB) (03 April 2024) URL: https://www.bailii.org/ew/cases/EWHC/KB/2024/625.html Cite as: [2024] EWHC 625 (KB), [2024] PTSR 1781, [2024] WLR(D) 186 |
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KING'S BENCH DIVISION
BRISTOL DISTRICT REGISTRY
Bristol BS1 6GR |
||
B e f o r e :
(Sitting as a Judge of the High Court)
____________________
NATURAL ENGLAND |
Claimant |
|
- and - |
||
ANDREW COOPER |
Defendant |
____________________
Andrew Cooper (the Defendant, in person)
Hearing dates: 16th and 17th November 2023 and 21st February 2024
(Draft judgment circulated to the parties on 19th March 2024)
____________________
Crown Copyright ©
HHJ Russen KC:
Index | Paragraph Number | |
Introduction | 1 to 12 | |
Background | 13 to 44 | |
The Tenancy Agreement | 45 to 55 | |
Evidence at Trial | 56 to 125 | |
Alex Goodman | (62 to 71) | |
Dawn Enright | (72 to 79) | |
Michael Madgwick | (80 to 84) | |
Andrew Cooper | (85 to 100) | |
James Parry | (101 to 110) | |
Kelly Bezer | (111 to 117) | |
George Dunn | (118 to 125) | |
Natural England | 126 to 129 | |
NE's Purposes | 130 to 184 | |
NERCA 2006 | (131 to 142) | |
The Explanatory Notes | (143 to 159) | |
The Framework Document | (160 to 162) | |
The 2006 Regulations | (163 to 176) | |
The Guidance | (177 to 181) | |
NE's approach | (182 to 184) | |
NE's Powers | 185 to 237 | |
General | (185 to 200) | |
NERCA 2006 | (201 to 215) | |
The Explanatory Notes | (216 to 217) | |
The Framework Document | (218 to 219) | |
The 2006 Regulations | (220 to 230) | |
The Enforcement Paper | (231 to 237) | |
Conclusions upon NE's Purposes and Powers | 238 to 282 | |
Functions not Purpose | (254 to 263) | |
No Relevant Anchor | (264 to 276) | |
Power to Prosecute | (277 to 279) | |
Consequences | (280 to 282) | |
Outcome | 283 to 297 | |
Disposal | 298 to 299 |
Introduction
Background
i) the presence of numerous flint tool artefact scatters dating from the Mesolithic period (c. 10,000 to 6,000 BP ("Before Present")); and
ii) the widespread survival of remains and structures from a World War II training area on Baggy Point which was used by US forces and closely associated with preparation for the D-Day landings.
"We understand they" the NT "have already undertaken a geophysical survey of the application fields and are also planning on conducting the following in order to assist with determining your application:
- Completion of analysis of the geophysical survey
- An Evaluation Survey including a programme of trial trenching/test pitting to evaluate features identified in the geophysical survey and to determine the level of survival of features/deposits below ground (i.e. those with the potential to be impacted by the plough zone)
- An episode of field walking
- Desk-based assessment
It is NE's opinion that, once completed and interpreted, these surveys should provide sufficient evidence on which to base a decision in your case. Therefore, NE strongly recommends that you assist NT with this survey work (allowing access to your fields), so that this survey work can be completed quickly and a decision made. We understand that the NT will be [in] contact with you shortly to discuss this survey work further."
"NE gave you advice on the further archaeological survey work that would be required. Because you have consistently confirmed that you are not prepared to fund this, NE has been unable to determine your application."
The Tenancy Agreement
"(a) Not to carry out any of the following works or acts without the having obtained the Landlord's prior approval in writing:
..
(viii) break the surface of the ground covering the sites of any archaeological or other monuments including those specified in Schedule 4(vii) hereto and not to deface or damage or permit to be defaced or damaged such monument whether buried or not and in particular to use his best endeavours to prevent damage by any burrowing animals."
"obtain all licences permissions and consents and to execute and do all the works and things and to bear and pay expenses required or imposed by any existing or future legislation in respect of any works carried out by the Tenant on the holding or any part thereof . ."
"All archaeological specimens and artefacts with the right to excavate and remove the same making payment to the Tenant reasonable compensation for all damage done and not reinstated by the Landlord in the exercise of the rights hereby reserved or any consequential loss from such damage."
Evidence at Trial
Alex Goodman
Dawn Enright
"Not only is 95% of known heritage sites undesignated, 84% of all designated heritage sites are located on farmland. This represents a proxy for undesignated remains. Natural England, as the delivery-body for Government's agri-environment schemes, is the key body ensuring protection and enhancement of the majority of non-designated sites.
Consequently, Natural England's and Historic England's roles are complementary. They benefit from close working relationships to ensure successful outcomes for nature and heritage. There are many areas of mutual interest but there is no overlap in duties or duplication of effort. It is Natural England and not Historic England who are tasked by the Government to apply the EIA 2006 Regulations."
i) The potential for the existence of remains of an Iron-Age promontory fort on Baggy Point, somewhere within the vicinity of the Farm. In testimony, Ms Enright explained that a rampart about 200 yards from the farmland, which she presumed was on land owned by the NT but not on the Farm, was one of a number of ramparts indicating that there might have been of such a fort. Although Ms Enright's first report had been expressed in language which could be read as supporting the existence of the potential Iron-Age fort on parts of the Farm itself (in particular the language she used in relation to field 5676 which is one of the 9 fields with which NE is concerned) I am not persuaded her testimony supported that inference. Her testimony was unclear as to precisely where on Baggy Point the remains of the fort might be. Mr Cooper said that if it was where she suggested at one point in her evidence then it would be in the sea. Further, in my judgment, Ms Enright's evidence about the potential fort was not supported by the suggestion that there might also be artefacts, most obviously pieces of pottery, from the Iron-Age period on the Farm. She suggested the (further) "potential" for this to the case but, although she was able to give the reference number for the historic records held by Devon County Council, she had not checked those records before giving evidence.
ii) The abundance of lithic scatters on the Farm which have been worked by hand for use as tools or weapons during the much earlier Mesolithic period. These Mesolithic flint tools, or microliths, indicate the presence of a hunter-gatherer society at Baggy Point during the Stone-Age. Ms Enright said this provides the context for the potential existence of the remains of a fort from the later Iron-Age period.
iii) The present ineligibility of such microliths for designation as a heritage site (under the Ancient Monuments and Archaeological Areas Act 1979) unless they are associated with structures such as pits, postholes, caves and rock shelters (including structures from later periods). Nevertheless, study of them allows archaeologists to reconstruct past mobility patterns (by identifying where the stone has been sourced and how far it has travelled), make comparisons between different sites (which can also inform studies about human movement) and to analyse the dates and duration of occupation and such matters as human advancements in tool manufacture and activities on site. If undisturbed, the soil around the flint scatters may also provide evidence of archaeological significance about the historic use of the land.
iv) The vulnerability and fragility of the flint scatters on the Farm to modern methods of cultivation. The increase in mechanisation since WWII and the use of bigger and heavier farm machinery for tilling can lead to damage to buried archaeological sites through both soil compaction and soil disturbance when lighter agricultural practices over earlier centuries may not have done so. Ms Enright said that the sheer quantity of flints on the surface indicates that it is the cultivation of the land on the Farm which has unearthed them.
v) The irreversible damage to the Mesolithic flints that can result from such cultivation. Ms Enright said that continued cultivation will result in significant dislocation and deterioration of the artefacts and eventually lead to the complete removal of the archaeological site.
vi) That 4 of an original 7 pillboxes, some with remains of associated slit trenches, built for training purposes during WWII still exist either on or at the boundary of the Farm. Although they are from the modern era Ms Enright said they should properly be regarded as archaeological features on the basis that archaeology is the study of things that people leave behind. She accepted that the remaining dummy pillboxes were robust structures, constructed of shuttered concrete, but that the associated earthworks are as vulnerable to damage and eventual destruction through land cultivation as any other archaeological earthwork.
Michael Madgwick
Mr Cooper
"3. The total farm holding is 67 hectares. A small full time farming unit by UK standards. To refuse consent to farm 30 hectares or 45% of the holding as the tenant sees fit is obviously the end of a viable agricultural holding.
Refusal of consent will directly result in the loss of the holding as an economically sustainable business, loss of house, home livelihood for a family of four. Children born and growing up, who have never known any other home than Croyde Hoe Farm; suddenly homeless."
James Parry
Kelly Bezer
"Whilst these are the next steps the National Trust recommends, I confirm we will now leave the matter between yourself and Natural England et al to resolve as we have concluded the element we committed to undertake."
George Dunn
"It is also relevant to underline that in terms of [Mr Cooper's] ability to profit from the Holding, the size of the Holding, its location and the limitations set out in the [Tenancy Agreement], the inability of using the land for its stated purpose without compensatory element through an agri-environment scheme would be severely damaging to the viability of the Holding in the hands of a competent tenant, farming a system of agriculture suitable to the Holding."
Natural England
"The [2006 Regulations] are not designed for historic environment protection (that would be a Historic England remit). The [2006 Regulations] are essentially for biodiversity, nature, plants and fauna. The clue is in the name of the statutory body."
NE's Purpose
NERCA
"2. General Purpose
(1) Natural England's general purpose is to ensure that the natural environment is conserved, enhanced and managed for the benefit of present and future generations, thereby contributing to sustainable development.
(2) Natural England's general purpose includes
(a) promoting nature conservation and protecting biodiversity,
(b) conserving and enhancing the landscape,
(c) securing the provision and improvement of facilities for the study, understanding and enjoyment of the natural environment,
(d) promoting access to the countryside and open spaces and encouraging open-air recreation, and
(e) contributing in other ways to social and economic well-being through management of the natural environment.
(3) The purpose in subsection (2)(e) may, in particular, be carried out by working with local communities."
"Natural England's environment purpose is part of our business and relates directly to our duty to conserve and enhance England's landscapes. The NERCA Act (2006) is unambiguous about our role:
" ..Subsection (2)(b) sets out conserving and enhancing the landscape. This includes, but goes wider than, conserving the natural beauty of the landscapes. It could for example cover conserving field boundaries and dry stone-walls), and monuments, buildings and sub-surface archaeological features which contribute to the landscape. Natural England will be able to observe and conserve the English landscape for aesthetic, cultural and historic purposes as well as those carried out for habitat protection purposes."
The Explanatory Notes
" . in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament."
"37. In principle the Explanatory Notes to an Act of Parliament are an admissible aid to its construction: see R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38; [2002] 1 WLR 2956 , at para. 5 (Lord Steyn). However, as Lord Steyn said, this is in so far as the Explanatory Notes "cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed". We do not consider that the Explanatory Notes to the [Gender Recognition Act 2004] are inconsistent with what we regard as the correct interpretation of sections 9 and 12 but, in any event, if they were, those Notes could not alter the true interpretation of the statute. Our task is to construe what Parliament has enacted, not what the Explanatory Notes say it enacted."
"29. The courts in conducting statutory interpretation are "seeking the meaning of the words which Parliament used": Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613 per Lord Reid. More recently, Lord Nicholls of Birkenhead stated:"Statutory
interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context." (R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349, 396.) Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained. There is an important constitutional reason for having regard primarily to the statutory context as Lord Nicholls explained in Spath Holme, p 397: "Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament."."
"30. External aids to interpretation therefore must play a secondary role. Explanatory Notes, prepared under the authority of Parliament, may cast light on the meaning of particular statutory provisions. Other sources, such as Law Commission reports, reports of Royal Commissions and advisory committees, and Government White Papers may disclose the background to a statute and assist the court to identify not only the mischief which it addresses but also the purpose of the legislation, thereby assisting a purposive interpretation of a particular statutory provision. The context disclosed by such materials is relevant to assist the court to ascertain the meaning of the statute, whether or not there is ambiguity and uncertainty, and indeed may reveal ambiguity or uncertainty: Bennion, Bailey and Norbury on Statutory Interpretation, 8th ed (2020), para 11.2. But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity. "
The Framework Document
"6.1. Natural England's vision is of "thriving Nature for people and planet". This ambition is not just to improve Nature, but to see it thriving everywhere, because a healthy natural environment is fundamental to health, wealth and happiness.
6.2. The term "Nature" encompasses natural beauty, wildlife and geology that underpins landscape character as well as the habitats on which some of the most important species depend. "Nature" also encompasses the essential services it provides, in addition to the historic and cultural connections with the environment that people have - for example through art and literature and personal experience.
6.3. Natural England's mission is "building partnerships for Nature's recovery"[footnote 8]. This reflects the need to work with and through a wide range of stakeholders to rebuild sustainable ecosystems and to protect and restore habitats, species and landscapes.
6.4. Natural England's Board have agreed a set of 5-year aims for the organisation's work:
- well-managed Nature Recovery Network across land, water and sea delivering resilient ecosystems rich in wildlife and character, enjoyed by people and widely benefiting society
- people connected to the natural environment for their own and society's wellbeing, enjoyment and prosperity
- Nature-based solutions contributing fully to tackling the climate change challenge and wider environmental hazards and threats
- improvements in the natural capital that drives sustainable economic growth, healthy food systems and prospering communities
- evidence and expertise is used by a broad range of partnerships, organisations and communities to achieve Nature recovery and enable effective regulation and accreditation
- being a values-led organisation which delivers excellent service standards to all partners, organisations and communities engaged in achieving Nature's recovery
6.5. Natural England will deliver the above strategic aims in the context of the Defra Group Outcome Delivery Plan outcomes."
The 2006 Regulations
"3. A description of the aspects of the environment likely to be significantly affected by the proposed project, including, in particular, population, fauna, flora, soil, water, air, climatic factors, material assets, including the architectural and archaeological heritage, landscape, and the inter-relationship between the above factors."
"4. A description of the factors specified in regulation 15A(2) likely to be significantly affected by the significant project: population, human health, biodiversity (for example fauna and flora), land (for example land take), soil (for example organic matter, erosion, compaction, sealing), water (for example hydromorphological changes, quantity and quality), air, climate (for example greenhouse gas emissions, impacts relevant to adaptation), material assets, cultural heritage, including architectural and archaeological aspects, and landscape."
"2(i) the absorption capacity of the natural environment, paying particular attention to the following areas -
(viii) landscapes of historic, cultural or archaeological significance."
The Guidance
"Archaeology assessment
Your assessment needs to verify the effects of the project on any areas of archaeological or historic interest on the site. A qualified person such as the county archaeologist can provide this information. You can also consult:
- the protected landscape authority - National Park Authority (https://www.nationalparksengland.org.uk) or Area of Outstanding Natural Beauty (AONB) (https://www.national-landscapes.org.uk/about-aonbs/aonbs/overview)
- Historic England (https://historicengland.org.uk)
- archaeology data from the MAGIC website (https://magic.defra.gov.uk)
Your consultations will verify:
- any archaeology or historic environment features within or near the project area
- the significance of the archaeology or historic environment
- the project's effect on the archaeology or historic environment
- how to best minimise the effect of the project"
NE's approach in these proceedings
NE's Powers
General
"524. Statutory and chartered corporations
Corporations may be created either by statute or by royal charter, and a fundamental distinction exists in relation between the powers and liabilities of the two classes. Statutory corporations have such rights and may do such acts only as are authorised directly or indirectly by the statutes creating them; chartered corporations, speaking generally, may do everything which an ordinary individual may do, but are subject (in the manner of any individual) to any restriction imposed directly or indirectly by statute.
When a corporation is created otherwise than by the authority of Parliament, all incidental powers and liabilities attach as of course. Thus generally, although there is no express power conferred to purchase land or to sue or be sued, the corporation may so purchase, or sue or be sued, as though all these necessary incidents had been expressly given. ."
"Where a local authority deem it expedient for the promotion or protection of the inhabitants of their area, they may prosecute or defend or appear in any legal proceedings and, in the case of civil proceedings, may institute them in their own name."
NERCA
"13 Incidental powers
(1) Natural England may do anything that appears to it to be conducive or incidental to the discharge of its functions.
(2) In particular, Natural England may
(a) enter into agreements;
(b) acquire or dispose of property;
(c) borrow money;
(d) subject to the approval of the Secretary of State, form bodies corporate or acquire or dispose of interests in bodies corporate;
(e) accept gifts;
(f) invest money."
"12 Power to bring criminal proceedings
(1) Natural England may institute criminal proceedings.
(2) A person who is authorised by Natural England to prosecute on its behalf in proceedings before a magistrates' court is entitled to prosecute in such proceedings."
The Explanatory Notes
"Section 12: Power to bring criminal proceedings
78. This section provides that Natural England has the power to institute proceedings and the power to authorise persons other than barristers or solicitors to bring prosecutions on its behalf. This enables Natural England to have prosecutors on its staff in the same way as do organisations such as the Environment Agency and local authorities.
Section 13: Incidental powers
79. Subsection (1) gives Natural England power to do anything conducive or incidental to the discharge of its functions. This includes but is not limited to the powers listed in subsection (2). The power to enter into agreements is not limited, and therefore can include working arrangements with persons in the private, public, voluntary and charity sectors."
The Framework Document
"5.7. In addition, Natural England has enforcement powers (under the Wildlife and Countryside Act 1981 and other enactments); and the power to bring criminal proceedings either directly or through a person authorised to prosecute on Natural England's behalf (section 12 of the NERC Act)."
The 2006 Regulations
"1. Enforcement undertakings
(1) A regulator may accept an enforcement undertaking from a person in a case where the regulator has reasonable grounds to suspect that the person has committed an offence under a provision specified in Schedule 5 and the table in that Schedule indicates that an enforcement undertaking may be accepted in relation to that offence.
(2) For the purposes of this Schedule, an "enforcement undertaking" is a written undertaking to take such action as may be specified in the undertaking within such period as may be so specified."
"7. Non-compliance with an enforcement undertaking
(1) If an enforcement undertaking is not complied with the regulator may either
(a) serve a variable monetary penalty notice, compliance notice or restoration notice, or
(b) bring criminal proceedings.
(2) If a person has complied partly but not fully with an undertaking, that part-compliance must be taken into account in the imposition of any criminal or other sanction on the person.
(3) Criminal proceedings for offences triable summarily to which an enforcement undertaking relates may be instituted at any time up to six months from the date when the regulator notifies the person that such person has failed to comply with that undertaking."
The Enforcement Paper
"Will you always accept Enforcement Undertakings?
6.5 We want to make the most of the opportunities that enforcement undertakings provide. However in some cases because of public interest factors, the behaviours involved or the risks and consequences arising from the offence being committed; a Variable Monetary Penalty or Prosecution may be the most appropriate enforcement response. An undertaking may also be rejected if it does not meet the minimum requirements outlined above, or the restoration we expect as outlined in paragraphs 5.9 5.18 of the main part of this document. Where practical and appropriate we will speak to third parties directly affected by an offence about proposed enforcement undertakings before deciding whether to accept them."
"3 Injunction
What is an Injunction?
3.1 An order of the Court directing an individual, company or organisation to stop or carry out a particular activity. Courts may grant Injunctions where there has been or is highly likely to be, a breach of a public law which constitutes a criminal offence. The Court's discretion to grant an Injunction is most likely to be exercised where there has been, or is highly likely to be, a blatant or deliberate breach of the legislation and there is a real risk or actual environmental harm.
What is the purpose of an Injunction?
3.2 To prevent serious damage to the environment, usually from ongoing offences.
What offences can an Injunction be used for?
3.3 All offences we are responsible for enforcing.
When will an Injunction be used?
3.4 We will apply to the Court for an Injunction as a last resort and only when all voluntary co-operation and enforcement mechanisms have been explored and exhausted. If we have access to RES Stop or Compliance Notices for the offences that are being committed we are likely to consider these first.
What standard of proof is required before an Injunction can be issued?
3.5 Balance of probabilities.
Who can authorise an Injunction?
3.6 Director Regulation in consultation with Head of Legal.
What is the process for obtaining an Injunction?
3.7 We apply to the Court.
.."
Conclusions upon NE's Purpose and Powers
i) Section 2(2)(b) of NERCA does not confer upon NE the purpose or function of conserving sub-surface Mesolithic flints or such flints scattered on the surface of the Farm's fields. They are not part of the landscape and, on that basis, do not form part of the natural environment for the purposes of section 2(1). On the other hand, the WWII dummy pillboxes and any remaining associated slit trenches are part of the landscape and can therefore be said to be part of the natural environment within the remit of NE's conservation powers.
ii) The 2006 Regulations (both between October 2006 and May 2017 and from that later date to the present) extend NE's remit to the archaeological heritage of a particular environment. Such archaeological heritage includes Mesolithic flints under and on the surface of the Farm's fields and also, on Ms Enright's evidence as to what constitutes archaeology, the dummy pillboxes and associated earthworks.
iii) The 2006 Regulations were made under an "other enactment" for the purposes of section 1(2) of NERCA (and might, as I say, even be argued to qualify as regulations under NERCA itself). Alongside NERCA, the 2006 Regulations are therefore the potential source of a 'function' to which NE may consider a power to sue for injunctive relief is conducive or incidental.
iv) Whether or not the provisions of NERCA (in relation to the WWII pillboxes) and/or of the 2006 Regulations (in relation to the microliths and the pillboxes) do support such a power involves identifying within them one or more statutory functions of NE capable of supporting it.
v) The subjective element of the language within section 13(1) ("anything that appears to it"), and also of section 13(2), gives NE a degree of discretion in relation to the exercise of the relevant incidental power. However, the existence of the relevant power rests upon what I have described as an anchor function. The objective support for a particular power which is not expressed must be on the basis that it is conducive or incidental to the exercise of a function (or functions) conferred by the legislation. This is unsurprising given NE's status as a statutory corporation.
Functions not Purpose
No Relevant 'Anchor' Function
The Power to Prosecute
Consequences
Outcome
Disposal