Natural England’s Power To Seek an Injunction Confirmed by Court of Appeal

16 January, 2025

The Court of Appeal has today allowed the appeal in Natural England v Cooper [2025] EWCA Civ 15 (Coulson, Males and Holgate LJJ).

Natural England’s Power To Seek an Injunction Confirmed by Court of Appeal

16 January, 2025

The Court of Appeal has today allowed the appeal in Natural England v Cooper [2025] EWCA Civ 15 (Coulson, Males and Holgate LJJ).

The respondent Mr Cooper has been the tenant farmer of 67 acres at Croyde Hoe Farm in north Devon since 1991.  From approximately 1992 to 2012, Mr Cooper entered into agreements under the Countryside Stewardship Scheme and, as part of this, maintained fields as pasture and uncultivated, in return for some £200,000 paid during the period. Then, in 2012, Mr Cooper applied to Natural England (NE) for an environmental impact assessment (EIA) screening decision in respect of nine fields, seeking to carry out mechanical and chemical cultivation of the fields for arable purposes.  NE’s EIA screening decision was that all nine fields were uncultivated and contained features of important historic interest of national significance.  As a result, Mr Cooper required permission under Regulation 4 of the Environmental Impact Assessment (Agriculture) (England) (No. 2) Regulations 2006, and consent under Regulation 9, for what was considered a “significant project”, being one likely to have significant effects on the environment.

Mr Cooper carried out some ploughing and planting in breach of the Regulations.  NE sought and obtained an interim injunction to restrain Mr Cooper from mechanically cultivating for arable cropping various fields which are of potential archaeological significance, which significance could well be lost with the use of modern cultivation methods, without first complying with the requirements of the Regulations.  The trial judge, however, decided that NE did not have power or standing to bring a claim for the injunction.  

The first and main issue on appeal was whether NE had the power and standing to institute a civil claim for an injunction.  The Court of Appeal accepted that the word “functions” in s13(1) of the Natural Environment and Rural Communities Act 2006 – which provided that NE may do anything that appears to it to be conducive or incidental to the discharge of its functions – was to be given a broad meaning.  It also accepted that NE’s role was as regulator and controlling authority of the scheme of environmental protection created by the Regulations.  

The Court of Appeal concluded that NE had the power to apply for an injunction to uphold the responsibilities for the protection of the environment which had been entrusted to it under the Regulations and to secure compliance with the Regulations, thereby discharging NE’s regulatory function under the scheme created by Parliament.

The Court went on to hold that, as NE is responsible for securing that relevant projects are subjected to the EIA process, and for enforcing that regime, it would have standing to seek the injunction sought to secure compliance with the Regulations.  The Court therefore decided that the permanent injunction sought by NE should be granted.

The Court of Appeal noted that the onus to obtain the necessary consent under the Regulations lay on Mr Cooper and that the cost of preparing the environmental information required was estimated to be a relatively modest expense and roughly a third of the sum Mr Cooper had already paid in a fine and costs order when he was convicted in 2021 for breaching a stop notice.  

There was a second issue in the appeal, namely whether, as the trial judge had held, NE’s interest in archaeological heritage as part of “the landscape”, as defined in s.2 of the Natural Environment and Rural Communities Act 2006, was limited essentially to situations where that heritage had a material visual impact on the topography of the land.  NE contended that “the landscape” in s.2 of NERC can include sub-surface archaeological features.  

The Court of Appeal did not need to decide this second issue for the appeal to succeed, but took the view that the trial judge’s approach to the meaning of the landscape was too narrow and that there is a historical component to our understanding of landscape which does not have to be perceptible to the eye.  The Court also noted that, in general, a purposive approach is generally taken to language concerned with environmental protection.

A copy of the Court of Appeal’s judgment is available here.

Richard Honey KC and Jonathan Welch appeared for Natural England in the appeal to the Court of Appeal.