Department for Environment, Food & Rural Affairs v Alford

For the purposes of the environmental impact assessment regime, a project uses uncultivated or semi-natural land for intensive agricultural purposes only where it increases agricultural productivity above the norm for land in an ordinary state of cultivation. A return from neglect to normal agricultural productivity is insufficient. The phrase must be interpreted consistently with the wide scope and broad purpose of the EIA Directive, but the statutory language must remain capable of bearing the adopted meaning. The proper comparison is with normal agricultural productivity, rather than the unusually unproductive condition resulting from abandonment.

Ellen Mary Alford appealed by way of case stated against her conviction at Plymouth Magistrates’ Court for carrying out projects on four fields without a screening decision or consent under regulation 19 of the Environmental Impact Assessment (Uncultivated Land and Semi-natural Areas) (England) Regulations 2001.

The projects consisted of spreading farmyard manure and calcified seaweed on previously neglected grassland, with the intention of grazing cattle. The central question was whether this amounted to an intervention involving the use of uncultivated or semi-natural land for intensive agricultural purposes within regulation 2(1).

The Divisional Court allowed the appeal and ordered that the appellant should have a defendant’s costs order in the High Court and below.

1. Interpretation of the regime. The 2001 Regulations implement, in the agricultural sphere, the environmental impact assessment requirements of Council Directive 85/337/EEC, as amended. Regulation 2(2) requires expressions used in both the Regulations and the directives to bear the same meaning unless otherwise provided. Following Aannemersbedrijf P K Kraaijeveld Bv e.a v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-0503, the national court must identify the directive’s purposes and adopt a meaning capable of promoting its wide scope and broad purpose.
2. Meaning of intensive agricultural purposes. The phrase contemplates intensive methods used to obtain greater productivity from the same area, as opposed to extending the area of production. It concerns the productivity of cultivated land, or land in a normal state of cultivation. It does not encompass merely restoring land that has been neglected to a normal level of agricultural productivity.
3. Application. The appellant’s land had been abandoned and had received no fertiliser or additives for many years. The manure and calcified seaweed were intended to restore its productive value and enable cattle to graze. The project was not shown to increase productivity above the norm. It was therefore not capable of being described as an intervention for intensive agricultural purposes.
4. The Habitats Directive could inform the Secretary of State’s decision-making after a project had been correctly categorised, but could not determine whether the project fell within the relevant category. The absence of thresholds in the 2001 Regulations did not alter the interpretation of regulation 2(1).
5. The convictions were set aside through the answers to the stated questions: an increase in productivity qualifies only if it is above the norm; the appellant’s project did not qualify.

The judgment describes an appeal by way of case stated from the appellant’s conviction at Plymouth Magistrates’ Court on 10 June 2004. The Divisional Court allowed the appeal and made a defendant’s costs order in this court and below.