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The recent case of Natural England v Cooper considered Natural England’s (NE) right to seek an injunction for a tenant farmer’s cultivation of pasture land, which could damage archaeological features of national significance.
The Court of Appeal held that NE had the power and standing to apply for a civil injunction to prevent noncompliance with the Environmental Impact Assessment (Agriculture) (England) (No. 2) Regulations 2006 (EIA Regulations). Natural England can act independently (without requiring the Attorney General) where an injunction is needed to fulfil its statutory role and functions.
The Facts
The Defendant, Mr Cooper, was the tenant farmer of Croyd Hoe Farm.
In 2012, Mr Cooper wished to start cultivation of some of the land and applied to NE for an Environmental Impact Assessment (EIA). NE concluded the land must remain uncultivated because of the presence of archaeological artefacts including Mesolithic flints and World War II pillboxes.
Mr Cooper started cultivating the land in breach of the EIA Regulations and NE issued a Stop Order. In April 2021, NE prosecuted Mr Cooper for failing to comply with the Stop Notice and Mr Cooper pleaded guilty and was fined £7,500. However, he continued to cultivate the land in 2021 and 2022.
In May 2023, the High Court granted an interim injunction to prevent Mr Cooper from further cultivating the land without compliance with the EIA Regulations. Mr Cooper argued that the archaeological features on the land did not fall under NE’s remit and that the injunction was an infringement of his rights under his tenancy and under the Human Rights Act 1998.
In April 2024, the High Court refused NE’s application for a final injunction concluding that NE did not have the power or standing to bring the claim because it was not ‘conducive or incidental’ to NE’s functions. NE appealed.
The Court of Appeal
NE cited the Natural Environment Rural Communities Act 2006 (NERC 2006) and successfully argued that they had power to litigate that which is ‘conductive or incidental’ to the discharge of their statutory functions. NE has a statutory function to enter and inspect land to ascertain whether the EIA Regulations have been breached, or an offence committed.
The court concluded that NE did have the power and standing to enforce compliance with the Regulations. This power was not express but was implied owing to NE’s statutory functions.
The case is an important reminder to both landowners and farmers to tread carefully when working with land containing archaeological artefacts precious to the UK’s national heritage or to risk a hefty bill for non-compliance with the Regulations.
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