England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		5 May 2005

Lord Justice Brooke : This is the judgment of the court.

1. This is an appeal by way of case stated by the defendant Ellen Mary Alford arising out of her conviction at the Plymouth Magistrates' Court on 10^th June 2004 on four charges of carrying out projects on land she owned at Vixen Tor Farm, Merrivale, Dartmoor without obtaining a screening decision or the grant of consent by the Secretary of State, contrary to regulation 19 of the Environmental Impact Assessment (Uncultivated Land and Semi-natural Areas) (England) Regulations 2001 ('the 2001 Regulations').
2. The projects in question involved the application of farmyard manure and calcified seaweed to four of her fields between 31^st March and 13^th April 2003. In the Case Stated Deputy District Judge Tate said that he found the following facts:

"A. No application was ever made for a screening decision, and no consent was given by the Secretary of State for the project.

B. Vixen Tor Farm is a grassland farm consisting of approximately 56 acres of land bordering the open common land of Dartmoor of which the four compartments of land referred to in the informations, Vixen Tor, and Fields 1, 2 and 3, form part.

C. From 1966 until 2002 the farm was tenanted by farmers called Cole. It appeared to have been abandoned by them. There was no evidence of cultivation, nothing was applied in terms of fertilizer or additives, and it was kept as grazing moor land. It was maintained in its natural habitat. The boundary walls and fences had been allowed to fall into disrepair and livestock from the common land had relatively unrestricted access to the farm.

D. The land came within the description 'uncultivated land, or semi-natural areas'.

E. The appellant carried out an intervention in the natural surroundings and landscape of the four compartments of land, by the application of farmyard manure and calcified seaweed. The purpose was to make the grass palatable to cattle. It was intended to graze 40 suckler cows on the land. The boundary walls and fences had been repaired and made stock proof. On Vixen Tor Field, Field 1, and Field 2 farmyard manure was spread at the rate of four cubic yards per acre, and calcified seaweed at the rate of 200 kilos per acre. On Field 3 only farmyard manure was spread, at the rate of four cubic yards per acre."

3. The Case Stated continued in the following terms:

"3. It was contended by the Appellant that the project did not involve the use of the land for 'intensive agricultural purposes'. She contended that the question was not whether the project intensified the agricultural purposes to which the land was put, but whether the land was used for intensive agricultural purposes. Reliance was placed upon a definition of the word 'intensive' in the New Oxford Dictionary of English (Second Edition 2003) '(of agriculture): aiming to achieve maximum production within a limited area, especially by using chemical and technological aids; intensive farming. Often contrasted with extensive'.

4. It was contended by the Respondent that any works to increase the agricultural usefulness of the land, thereby intensifying the agricultural purposes above the current agricultural purposes, met the requirement. Reliance was placed upon the definition of the word 'intensive' in the Oxford English Dictionary: 'applied to methods of cultivation, fishery etc, which increase the productiveness of a given area; opposed to extensive in which the area of production is extended'.

5. I concluded that prior to 2002 no effort had been made to farm the land and it had been effectively abandoned. The appellant had repaired the boundary walls and fences and made the farm stock proof. The project involved the application of farmyard manure and calcified seaweed to the land in order to increase its productive value, and enable the raising of 40 suckler cows on the land. I decided that the project came within the definition of use of the land for intensive agricultural purposes, and followed the definition of the word 'intensive' in the Oxford English Dictionary.

I found the appellant guilty of all four offences. I fined the appellant £250 on each offence making a total of £1,000 and ordered her to make a contribution to the prosecution costs of £5,000.

6. The question for the opinion of the High Court is what is meant by the phrase 'intensive agricultural purposes' in regulation 2 (1) of the Environmental Impact Assessment Regulations 2001. Does an increase in the productiveness of a given area, or an intensification of the agricultural purposes to which the land is put come within the definition? Did the appellant's project amount to an intervention in the natural surroundings and landscape involving the use of uncultivated land or semi-natural areas for intensive agricultural purposes?"

4. The Explanatory Note to the 2001 Regulations makes it clear that they are concerned to implement two EC directives which have a bearing on the control of projects for the use of uncultivated land and semi-natural areas in England for intensive agricultural purposes. These are Council Directive 85/337/EEC, as amended by Council Directive 97/11/EC of 3 March 1997, ("the EIA Directive"), on the effect of certain public and private projects on the environment, and Council Directive 1992/43/EEC, as amended ('the Habitats Directive'), insofar as it has any application to such projects. Mr Blair, who appeared for the respondent department ("DEFRA"), accepted that while the contents of the Habitats Directive might colour the department's decision-making progress once a project had been correctly identified as one involving the use of uncultivated land or semi-natural areas for intensive agricultural purposes, they could not affect one way or other the question whether that project had been correctly so categorised.
5. The EIA Directive was implemented in our national planning law by the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ("the 1999 Regulations"). The agricultural or agriculturally-related operations that are most relevant to the uncultivated land provisions with which we are concerned do not, however, require planning permission. A parallel system of control, administered by DEFRA, was therefore required to ensure that the requirements of the EIA Directive were also complied with in the agricultural sphere. Hence the 2001 Regulations. The scheme set out in both the 1999 and the 2001 Regulations provides that whereby if a 'project' falls within one of the categories set out in Annex II of the EIA Directive, (and if, in connection with the 1999 Regulations, its scale exceeds the threshold, if any, that is set out in those regulations in respect of that type of project), the relevant statutory authority must consider it and make what is called a screening decision. It has to decide whether the project's effects are sufficiently significant, so far as the environment is concerned, to warrant the preparation of what is called an environmental statement. The publication of this statement will then inform the decision-making process that is concerned with determining whether to permit the project to proceed notwithstanding its effect on the environment.
6. From the outset the EIA Directive divided the projects which might fall within its ambit into two lists. If a project was placed in the list in Annex I, it was mandatory to provide the requisite statement. If it was placed in the list in Annex II, on the other hand, it was for the Member States to decide whether a statement was required. The preamble to the 1997 amending directive shows how experience had shown that the scheme should be strengthened in certain respects. The list in Annex I, in particular, was greatly enlarged, and the list in Annex II was also extended.
7. Paragraph 1(b) of Annex II of the EIA Directive, both in its original and in its amended form, includes among the projects which may, at the discretion of a Member State, be subject to an environmental impact assessment

"Projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes."

8. This is included in a list numbered 1 under the heading "Agriculture, silviculture and aquaculture". The other items on this list, as it appears in the amended directive are:

"(a) Projects for the restructuring of rural land holdings;

(c) Water management projects for agriculture, including irrigation and land drainage projects;

(d) Initial afforestation and deforestation for the purposes of conversion to another type of land use;

(e) Intensive livestock installations (projects not included in Annex 1)

(f) Intensive fish farming;

(g) Reclamation of land from the sea."

9. Incidentally, Annex I to the EIA Directive includes in its amended form a new item 17:

"Installations for the intensive rearing of poultry or pigs with more than

(a) 85,000 places for broilers, 60,000 places for hens;

(b) 3,000 places for production pigs (over 30 kg); or

(c) 900 places for sows."

With this exception, the Directive casts no further light on the meaning of the word "intensive".

10. In the field of planning law the 1999 Regulations excluded plots less than 0.5 hectares in size from consideration if they were otherwise embraced by category (b) in the list of agricultural projects in Annex II of the directive, but the 2001 Regulations contain no such threshold. DEFRA has explained in a helpful guidance note on its website that it decided not to apply thresholds because some very small areas of land may be environmentally valuable.
11. We must now say a little about certain features of the 2001 Regulations before we turn to the question of interpretation at the centre of this appeal.
12. Regulation 2, which is concerned with "Interpretation", identifies the two directives which the regulations are concerned to implement, and Regulation 2(2) provides that:

"(2) Unless it is otherwise provided, expressions used both in these Regulations and in the EIA Directive or in the Habitats Directive shall have the same meaning in these Regulations as they have in those respective Directives."

13. Regulation 2(1) defines the word "project" as meaning:

"(a) the execution of construction works or other installations or schemes; or

(b) other interventions in the natural surroundings and landscape,

involving the use of uncultivated land or semi-natural areas for intensive agricultural purposes."

14. It is not in issue on this appeal that the appellant's land was properly to be regarded as uncultivated (or a semi-natural area); the question we have to determine is whether her project involved the use of her land for intensive agricultural purposes. If it did, it did not qualify for any exemption under Regulation 3(2) or (3), and Regulation 4 prohibited her from beginning or carrying out a project without first obtaining a screening decision. Regulation 5 shows that the screening process enables the Secretary of State to decide whether the project is likely to have a significant effect on the environment. If it does, it becomes a "relevant project" for the purposes of the Regulations so that it may not be begun or carried out without the Secretary of State's consent. Finally, Regulation 19, under which the appellant was convicted, provides that:

"Any person who begins or carries out a project without first obtaining either a decision that the project is not a relevant project or a decision granting consent for the project in accordance with these Regulations shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale."

15. We have been told that there is no English or ECJ case-law which casts any light on the meaning of the words "intensive agricultural purposes". It is, however, instructive to note that in Aannemersbedrijf P K Kraaijeveld Bv e.a v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-0503 the European Court of Justice was concerned to interpret the words "canalization and flood-relief works" which appeared in point 10(e) of Annex II to the EIA Directive in its unamended form. One of the questions which arose in that case was whether the phrase embraced dyke work along navigable waters which was carried for the purpose of retaining water and preventing floods.
16. After observing that the different language versions of point 10(e) fell into two categories according to whether the terms employed denoted the idea of flooding - the English and Finnish versions did, while nine other versions, including the Dutch (which referred merely to "canalization and regulation of watercourses") did not – the court said at paras 30-33:

"30 Given that divergence, one must go to the purpose and general scheme of the directive. According to Article 1(2) of the directive, 'project' means the 'execution of construction works or of other installations or schemes' and 'other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources'. According to Article 2(1), the directive is aimed at 'projects likely to have significant effects on the environment by virtue inter alia of their nature, size of location'. Article 3 provides that the environmental impact assessment is to identify, describe and assess the direct and indirect effects of a project on human beings, fauna and flora, soil, water, air, climate and the landscape, material assets and the cultural heritage.

31 The wording of the directive indicates that it has a wide scope and a broad purpose. That observation alone should suffice to interpret point 10(e) of Annex II to the directive as encompassing all works for retaining water and preventing floods, and therefore dyke works, even if not all the linguistic versions are so precise.

32 Even if, as argued by the Government of the Netherlands, dyke works consist in the construction or raising of the height of embankments in order to contain watercourses and avoid flooding, works retaining a static quantity of water, rather than a running watercourse, may have a significant effect on the environment within the meaning of the directive where they are liable permanently to affect the composition of the soil, flora and fauna or the landscape. Such works must therefore fall under the directive.

33. Consequently, the argument of the Government of the Netherlands that dyke work does not alter the course of a waterway is not well founded."

17. This judgment contains a salutary reminder that in interpreting regulations based on EC law it is incumbent on a national court, if confronted with a dispute about the meaning of a phrase used in a directive, to identify the purposes of the directive and adopt a meaning (provided that the words are capable of bearing that meaning) which best promotes the wide scope and broad purpose of the directive.
18. When we first read these papers we were surprised to see that a project which involved no more than the re-invigoration of farmland which had been badly neglected for many years could properly be categorised as one which used the land for intensive agricultural purposes. Mr Blair did not suggest that the application of farmyard manure and calcified seaweed in the volumes described in finding E in the Case Stated (see para 2 above) could have been calculated to raise the productivity of the land above what could normally be expected of such land if it had not fallen into a state of neglect. We were fortified in my original impression by the definition contained in the second edition of the New Oxford Dictionary of English (2003) at p 901:

"intensive

(of agriculture) aiming to achieve maximum production within a limited area, especially by using chemical and technological aids: intensive farming."

For what it is worth, Mr Blair accepted that no chemical or technological aids were used in this case.

19. Our initial impressions were then confirmed by DEFRA'S own guidelines, in which they said (at para 15):

"We will need to judge individual cases to see whether the land use resulting from the proposed operations is 'for intensive agricultural purposes'. We will take account of whether the project involves using the land at greater than the average agricultural intensity for the activity in question. " (Emphasis added)

20. Mr Blair, however, argued that his clients were entitled to take the view that this project qualified for screening under the 2001 Regulations. He said that uncultivated and semi-natural areas have been decimated by agricultural practice in the decades since the Second World War, and that this process has brought about the destruction of important habitats for flora and fauna. As a result, species of flora and fauna have been seriously damaged and even extinguished.
21. In this case the land had been abandoned to nature for decades without the application of fertiliser – the evidence showed that it contained less than 10% of rye grass and clover, on which cattle will thrive – and he said that there can be a significant impact on the environment from a relatively small intensification of the agricultural productiveness of an area. Through neglect the land had become a significant habitat for acid loving flora, and the appellant's intervention was intended to bring this state of affairs to an end. In these circumstances he submitted that a project designed to cultivate previously uncultivated land was one designed for an intensive agricultural purpose. It was proper to compare the state of the land after it had been fertilised with its neglected state before the project commenced. This was the legitimate comparison, and not a comparison with land in a normal state of cultivation.
22. Mr Blair explained to us the dilemma that faced his clients in trying to police the regulations if their preferred approach was not upheld. It is relatively easy to identify for screening purposes a project which intensifies the agricultural potential of the land over and above its pre-existing state. It is far less easy to identify projects which intensify the agricultural productivity of land above the norm for land in an ordinary state of cultivation, and the need to protect threatened flora and fauna is sufficiently pressing that the court should accept that his client's approach was correct in law. In this context he drew comfort from the Oxford English Dictionary meaning of "intensive" which the district judge quoted in para 4 of the Case Stated (see para 3 above).
23. When one examines that definition, however, and the nineteenth century examples of the usage of the phrase, it is obvious that the distinction made in the dictionary between intensive cultivation and an intensive fishery on the one hand, and extensive cultivation and an extensive fishery on the other, show that what is in contemplation is an increase in the productivity of cultivated land, or of a fishery. The two suggested options are to use intensive methods to obtain greater productivity from the same area, or to eschew intensive methods and to extend the area of production. I do not consider that this definition takes Mr Blair's case any further forward.
24. In his written submissions he drew attention to the fact that the Secretary of State for Environment, Food and Rural Affairs is identified at the start of the 2001 Regulations as a Minister designated for the purposes of s 2(2) of the European Communities Act 1972 in relation to measures relating to the conservation of natural habitats and of wild fauna and flora. This reference was needed, however, to show that she had the legal power to introduce regulations to give effect to the Habitats Directive. We have already observed, however, that there is nothing in the Habitats Directive that throws any useful light on the interpretation of the words "for intensive agricultural purposes".
25. We did not obtain any assistance from DEFRA's explanation in its Guidelines that relevant cultivations could include spreading soil or other material, including fertiliser or lime in excess of existing routine application rates. Even if fertiliser and lime had not been applied for many years (so that there were no existing routine application rates and any new application would have exceeded what was there before), this explanation of the concept of "cultivations" casts no light at all on the meaning of the words "for intensive agricultural purposes", on which, as we have observed, DEFRA's Guidelines favoured the appellant's case.
26. Nor did we obtain any assistance from the argument that DEFRA had decided not to insert any quantity threshold criteria in relation to this item in the first list in Annex II, whereas such thresholds appeared elsewhere in the EIA Directive and in the 1999 Regulations. Either this project came within the definition of "project" in Regulation 2 (see para 13 above) or it did not.
27. In our judgment it did not. We do not consider that what was done in this case was capable of being described as an intervention for intensive agricultural purposes, and although we remind ourselves that the EIA Directive has a wide scope and a broad purpose, we do not consider that its framers intended it to catch a project that was concerned only to bring land back to a normal level of agricultural productivity.
28. For these reasons we would allow this appeal and grant the appellant a defendant's costs order both in this court and below.
29. The answers to the questions posed by the deputy district judge are therefore:

i) No, unless the productivity of the land for agricultural purposes is intensified above the norm.

ii) No.