Natural England v Cooper

Factual and Procedural Background

The appellant, Company A, established under the Natural Environment and Rural Communities Act 2006 ("NERCA 2006"), acts as the regulator under The Environmental Impact Assessment (Agriculture) (England) (No. 2) Regulations 2006 ("the 2006 Regulations"). The dispute concerns the respondent, Defendant, who farms 67 hectares of land under a yearly tenancy granted by Company B. The 2006 Regulations prohibit cultivation of certain land without consent from Company A. Defendant applied for consent in 2013, but the application remains undetermined due to insufficient information, particularly regarding potential archaeological interests beneath the land.

Despite statutory notices and criminal sanctions, Defendant continued to cultivate the land, prompting Company A to seek injunctive relief in April 2023. An interim injunction was granted by the High Court in May 2023, with an expedited trial held in November 2023 and closing submissions in February 2024. The judgment, delivered in April 2024, dismissed Company A's claim on the basis that it lacked power and standing to bring the injunction claim in its own name, which could only be brought as a relator action with the Attorney General's consent. The judge indicated that but for this lack of standing, a final injunction would have been granted. Permission to appeal was granted, and the interim injunction was maintained pending appeal.

Legal Issues Presented

1. Whether Company A has the power and standing as regulator under the 2006 Regulations to obtain an injunction to secure compliance with the consenting regime.
2. The proper interpretation of the scope of Company A's statutory functions under NERCA 2006, particularly regarding the inclusion of archaeological interests within the concept of "landscape".
3. Whether Company A's claim for an injunction is incidental or conducive to its statutory functions or merely consequential to failed criminal proceedings.
4. The extent to which Company A requires the Attorney General's consent to bring a relator action for injunction enforcement of the 2006 Regulations.

Arguments of the Parties

Appellant's Arguments

• Company A contended it had an incidental power under section 13(1) of NERCA 2006 to apply for an injunction conducive or incidental to the discharge of its functions under the 2006 Regulations, including enforcement of environmental protection.
• Company A submitted it has standing to apply for an injunction without needing the Attorney General's consent for a relator action.
• Company A argued the judge's interpretation of "landscape" was too narrow, excluding sub-surface archaeological features that contribute to the environment.
• Company A maintained that injunctions are a legitimate regulatory tool to secure compliance beyond criminal sanctions, which had proven ineffective.

Respondent's Arguments

• Defendant argued that Company A's statutory functions concern protection of the natural environment and do not extend to archaeological interests beneath the surface.
• Defendant claimed Company A failed to properly carry out its duties, including timely decision-making on his application for consent and improperly requiring additional information after consultation began.
• Defendant contended that Company A was improperly seeking an injunction to bypass the regulatory process and should have pursued prosecutions under the relevant regulations.
• Defendant asserted that the injunction would conflict with the terms of his tenancy agreement with Company B, which reserved archaeological specimens and required landlord consent for disturbance.
• Defendant raised concerns about the financial burden of required archaeological surveys and the viability of his farm if cultivation was restricted.
• Defendant suggested that if any injunction were granted, it should be a mandatory injunction requiring him to carry out the surveys rather than prohibiting cultivation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Attorney General v Great Eastern Railway Company (1880) 5 App Cas 473	Common law principle that a statutory corporation may do anything reasonably incidental to its express powers.	Company A relied on this to support incidental powers under s.13(1) of NERCA 2006 to seek injunctions.
London County Council v South Metropolitan Gas Company [1904] 1 Ch 76	Incidental power to obtain injunctions to enforce statutory duties even without express power.	Cited to support Company A's power to seek injunctions as regulator to enforce compliance.
R (Wells) v Secretary of State for Transport, Local Government and the Regions [2004] Env LR 27	Member states must take measures to ensure compliance with EIA Directive including revocation of consents.	Supported the regulatory framework Company A enforces under the 2006 Regulations.
Broadmoor Special Hospital Authority v Robinson [2000] QB 775	Public bodies with statutory functions impliedly have standing to seek injunctions to protect public interests without needing Attorney General's consent.	Supported Company A's standing to seek injunctions in its own name.
Gouriet v Union of Post Office Workers [1978] AC 435	Public rights generally enforceable only by Attorney General or by private individuals showing special damage or with Attorney General's consent.	Used to analyse whether Company A needed Attorney General's consent to bring injunction claim.
Stoke on Trent City Council v B & Q (Retail) Limited [1984] AC 754	Local authorities need express statutory power to bring injunctions enforcing public rights in their own name without relator action.	Distinguished from Company A's position due to its statutory regulatory functions.
London Dockland Development Corporation v Rank Hovis Limited (1986) 84 LGR 101	Distinction between power to litigate and standing; broad statutory purposes insufficient to confer standing without express power.	Considered in relation to whether Company A's statutory functions confer standing to sue.
Chief Constable of Kent v V [1983] QB 34	Chief Constable has standing to obtain injunctions related to enforcement of criminal law without statutory authorization.	Supported broader standing of public bodies like Company A to seek injunctions.
Attorney General v Chaudry [1971] 1 WLR 1614	Injunctions in aid of criminal law require Attorney General's consent; not incidental to criminal prosecution.	Judge relied on this to deny incidental power; appellate court disagreed.
Kirklees Metropolitan Borough Council v Wickes Building Supplies Limited [1993] AC 227	Injunctions can be granted to prevent serious, irreparable harm despite availability of criminal sanctions.	Supported the appropriateness of injunctions to secure compliance with regulations.
Hazell v Hammersmith London Borough Council [1992] 2 AC 1	Interpretation of incidental powers under statutory functions.	Guided interpretation of s.13(1) of NERCA 2006 regarding incidental powers.
R v Richmond London Borough Council ex parte McCarthy & Stone (Developments) Limited [1992] 2 AC 48	Incidental powers must be linked to a statutory function, not an incidental function.	Used to assess whether injunction power was incidental to Company A's functions.
Solicitors Regulation Authority v Khan [2021] EWHC 3765 (Ch)	Public bodies with statutory responsibilities have standing to seek injunctions.	Reinforced Company A's standing argument.
Convoy Collateral Limited v Broad Idea International Limited [2023] AC 389	Confirmed broad scope of court's jurisdiction to grant injunctions and standing principles.	Supported appellate court's approach to standing and injunction powers.
Wolverhampton City Council v London Gypsies and Travellers [2024] AC 983	Reaffirmed principles on standing and injunction jurisdiction.	Confirmed continuing validity of Broadmoor standing principles.

Court's Reasoning and Analysis

The court analysed the statutory framework, focusing on NERCA 2006 and the 2006 Regulations. It found that Company A's functions under the 2006 Regulations fall within the scope of s.1(2) and s.13(1) of NERCA 2006, which confer incidental powers to perform functions, including litigation.

The court rejected the trial judge's conclusion that the injunction claim was not incidental to Company A's functions, explaining that the regulatory scheme is forward-looking and enforcement tools like injunctions are part of securing compliance, not merely consequential on failed criminal prosecutions.

The court distinguished between powers and standing, clarifying that the lack of express statutory power analogous to s.222 of the Local Government Act 1972 affects standing but not the incidental power to litigate. It held that Company A has standing to seek an injunction without the Attorney General's consent, based on its statutory responsibilities and regulatory functions.

The court considered the meaning of "landscape" in the statutory context, expressing doubt about the trial judge's narrow interpretation excluding sub-surface archaeological features, but deemed this issue non-determinative for the appeal.

Respondent's arguments regarding procedural failings by Company A, financial burden, and tenancy rights were addressed, with the court affirming that public law obligations under the 2006 Regulations prevail over private tenancy agreements, and that the enforcement process, including survey requirements, was lawful and necessary.

Finally, the court agreed with the trial judge that, on the merits, an injunction would be appropriate to prevent ongoing breaches, but the trial judge had erred in denying Company A the power and standing to seek it.

Holding and Implications

The court ALLOWED THE APPEAL and granted the permanent injunction sought by Company A to restrain Defendant from cultivating the land without consent under the 2006 Regulations.

The decision clarifies that Company A, as the statutory regulator, possesses an incidental power under s.13(1) of NERCA 2006 to seek injunctions to enforce compliance with its regulatory functions without needing the Attorney General's consent for a relator action. This affirms the enforcement toolkit available to regulatory bodies under similar statutory schemes.

The ruling does not set a new precedent on the precise interpretation of "landscape" in the context of archaeological interests but signals openness to a broader understanding in future cases. The injunction enforces public law obligations over private contractual arrangements such as tenancy agreements.