Horvath, R (on the application of) v Secretary of State For the Environment, Food & Rural Affairs

Member States may define minimum good agricultural and environmental requirements regionally under Article 5 of Council Regulation (EC) No 1782/2003, provided that the requirements use the framework in Annex IV and reflect the Regulation’s purposes. Regional requirements need not be identical, even where regional characteristics are similar. Visible public rights of way may arguably constitute landscape features, and their protection may contribute to habitat preservation. Whether requirements concerning public rights of way are within the Regulation’s scope and proportionate was sufficiently arguable to require a reference to the European Court of Justice. A separate reference was also required on whether differing requirements in England, Wales, Scotland and Northern Ireland infringed Community principles of equality and non-discrimination.

The claimant, a Suffolk farmer participating in the Single Payment Scheme, sought judicial review of paragraphs 26 to 28 of the Schedule to the Common Agricultural Policy Single Payment and Support Schemes (Cross Compliance) (England) Regulations 2004. Those provisions imposed cross-compliance obligations concerning public rights of way, including obstruction, maintenance of structures and reinstatement after permitted disturbance.

The claimant argued that the provisions exceeded the powers conferred by Council Regulation (EC) No 1782/2003, were disproportionate, and discriminated against farmers in England because equivalent provisions were not made in Wales, Scotland or Northern Ireland. The central questions were whether the English provisions were intra vires and proportionate, and, if so, whether the regional differences complied with equality and non-discrimination principles.

1. Reference ordered. The court did not finally determine the validity of paragraphs 26 to 28. It ordered references to the European Court of Justice on whether those provisions were within Defra’s powers, including whether they were intra vires and proportionate, and on whether they infringed equality or non-discrimination principles when compared with the other parts of the United Kingdom.
2. Article 5 of Council Regulation (EC) No 1782/2003 requires Member States to define minimum good agricultural and environmental requirements using the framework in Annex IV and taking account of regional characteristics. The wording permits regional variation. Minimum requirements need not be identical throughout a Member State, even where characteristics are identical.
3. The addition of “environmental” to “good agricultural and environmental condition”, together with the reference to habitats in Annex IV, provided a substantial argument that the Regulation extended beyond purely agricultural land management. Visible rights of way could properly be regarded as landscape features. Stiles and gates could also fall within that concept, despite their variable permanence. There was evidence that rights of way might assist in preserving habitats and field margins.
4. The issue remained sufficiently open to justify a reference. The court regarded the English provisions as supported by cogent arguments, but it could not resolve conclusively whether they fell within the minimum requirements permitted by Article 5 or whether they were proportionate.
5. Community law equality principles were potentially engaged. Authorities including Klensch v Secrétaire d’État à l’Agriculture et à la Viticulture, Mulligan v Minister for Agriculture and Food, Ireland and Romeu v Commission of the European Communities indicated that implementation choices must comply with equality and other general principles. The fact that different devolved authorities made the choices did not necessarily answer the issue.
6. Payment entitlements fell within the ambit of Article 1 of Protocol 1 to the Convention, so Article 14 could potentially be relevant. The court therefore directed preparation of an order containing the two questions for reference, with the judgment attached in accordance with CPR Part 68.