Friends of the Earth Ltd, R (On the Application Of) v Secretary of State for the Environment, Food And Rural Affairs

Article 53 of Regulation (EC) 1107/2009 is a strictly construed derogation from the ordinary authorisation regime. Whether special circumstances exist, whether a danger cannot be contained by another reasonable means, and whether an authorisation is limited and controlled are matters of judgment for the decision-maker in the factual and evidential context. The court should not substitute its assessment for that of an expert decision-maker where the decision has an adequate evidential basis. There is no requirement to exhaust cultural or non-chemical methods before concluding that no other reasonable means exists. The Sustainable Use Directive does not alter the Article 53 criteria. An authorisation may be controlled through quantitative limits, stewardship conditions, record-keeping, targeting requirements and enforcement consequences.

Friends of the Earth Limited sought judicial review of the Secretary of State’s decision to grant the National Farmers Union emergency authorisations for the use of two neonicotinoid-treated seed products on winter oilseed rape. The authorisations were made under Article 53 of Regulation (EC) 1107/2009 and followed earlier refusals of wider applications.

The challenge alleged that the Secretary of State had failed to consider whether there were special circumstances, whether the danger could be contained by another reasonable means, and whether the use was limited and controlled. Proportionality and the Sustainable Use Directive were also relied upon.

1. Application dismissed. The challenge was unarguable on all grounds advanced at the hearing.
2. Article 53 is a derogation from Article 28 and must be strictly construed. The expression special circumstances is undefined. Its application is a matter of judgment for the decision-maker in the relevant factual context. The Secretary of State had an adequate evidential basis, including assessments by the HSE, the ECP, supporting research and expert advice, for concluding that special circumstances existed.
3. The requirement that the danger cannot be contained by any other reasonable means involves a matter of fact and degree closely related to need. The ECP considered chemical and cultural methods and concluded that no other viable control methods were then available. There was no legislative requirement to exhaust cultural methods before reaching that conclusion.
4. The Sustainable Use Directive was complementary to other Community legislation. Article 2(2) provided that it applied without prejudice to other relevant Community legislation, and Article 14 imposed no obligation altering Article 53. The court applied the caution stated in R (Rotherham Metropolitan Borough Council) v Secretary of State for Business, Innovation and Skills [2005] UKSC 6 at [24] concerning a national court’s assessment of a measure accepted as consistent by the Commission.
5. The authorisations were both limited and controlled. The quantity of treated seed was restricted to 5% of the national oilseed rape crop area. Mandatory conditions required records, stewardship agreements, data collection and distribution towards areas of highest risk. Breach could lead to withdrawal or amendment, enforcement action or prosecution.
6. Proportionality was engaged, but the claimant showed no basis for concluding that the measures were inappropriate or unnecessary. Although there was no express consideration of a shorter authorisation period, the established need supported the inference that it extended throughout the 120-day period.