Where breaches of Regulatory Notices occur, the “guilty” party can often expect proceedings to be brought against them. But what form of punishment could take place?
Who has the authority to bring the proceedings, and exactly what proceedings can be brought?
This case serves as a caution for public agencies, quangos and regulatory bodies in escalating enforcement proceedings. It also highlights the potential limitations for “offenders” of the scope of enforcement that might be conferred.
A glance at a recent case
Mr Cooper had farmed a 67-hectare Devon farm for decades. The land was owned by the National Trust. Mr Cooper was a tenant.
Natural England, a non-departmental body (advising the Government on the natural environment), had sought an Injunction to prevent Mr Cooper from ploughing land on the basis that it could be harmful to important and historic archaeological features, relating to prehistoric and WW2 factors. Experts had found evidence of such archaeological remains.
Mr Cooper had previously faced criminal proceedings for failing to comply with a Stop Notice served on him by Natural England, the breaches were admitted by Mr Cooper, who was then faced with over £30,000 in fines and costs. Nevertheless, Mr Cooper continued to plough the field. As expected, Natural England sought further remedial action as financial punishments clearly were not deterring Cooper and applied for injunctive relief to prevent Cooper from farming the land.
An Injunction is a civil remedy and is designed to prevent someone/something from repeatedly doing something they are not permitted to do. Breach of an Injunction can result in a custodial sentence – notionally a much stronger deterrent than financial penalties. Natural England’s stance as a public body means that the power to escalate an Injunction needs to be formally conferred.
The case was heard in the High Court in Bristol in November 2023 and February 2024. The claim by Natural England to bring Injunction proceedings was dismissed. The key findings and observations are thus:
- Natural England’s power is derived from the Environment Impact Assessment (Agriculture) (England) (No 2) Regulations. As such Natural England, has delegated powers to prosecute offences which breach those Regulations
- Natural England explicitly has the power to bring criminal proceedings (and to issue a Stop Notice) under those Regulations.
- Natural England does not have the authority to bring civil Injunction proceedings.
- “…The commencement of civil proceedings cannot be regarded as incidental to… [the] function as a prosecutor…” [per HHJ Russen KC].
Here, in practice, a line has been drawn (or perhaps a furrow has been ploughed). Public bodies may not always have access to civil remedies without being expressly empowered.
This saga has perhaps not yet ended. Natural England is considering the Judgment and may decide to challenge the decision. In the alternative, Natural England (and any other body or agency with limited authority) may also ask the Attorney General to confer such authority [on a case-by-case basis].