Chiltern Farm Chemicals Ltd, R (On the Application Of) v The Health And Safety Executive

An authorised plant protection product used in accordance with recognised agricultural practice remains outside the statutory definition of a regulated procedure, even where the use forms part of a scientific monitoring study. The relevant question is the character of the use, not the investigator’s purpose or motive. Section 2(8) of the Animals (Scientific Procedures) Act 1986 therefore has substantive effect. Monitoring an authorised product in its ordinary agricultural setting does not require a licence or bring the resulting study within the data-sharing provisions of article 62 of Regulation (EC) No 1107/2009. Interference with the owner’s property and confidentiality rights would in any event be disproportionate where the study added no material risk beyond accepted agricultural use.

The appellant manufactured and marketed metaldehyde slug pellets. For the purposes of re-authorisation under Regulation (EC) No 1107/2009, it submitted a bird field-monitoring study involving the use of the pellets in accordance with authorised and recognised agricultural practice.

The Health and Safety Executive decided that the study was a vertebrate study within the article 62 data-sharing provisions. The appellant brought judicial review proceedings. His Honour Judge Saffman, sitting as a Deputy High Court judge, refused the claim in [2017] EWHC 2491 (Admin). The central issue on appeal was whether the scientific purpose of the study caused an otherwise recognised agricultural practice to become a regulated procedure under section 2 of the Animals (Scientific Procedures) Act 1986.

The appeal was allowed unanimously. Lord Justice Hickinbottom gave the judgment, with Lord Justice Leggatt and the Senior President of Tribunals agreeing.

1. Statutory scheme. The article 62 data-sharing provisions of Regulation (EC) No 1107/2009 apply only to test and study reports concerning vertebrate animals. That expression has the same meaning as experiments under Council Directive 86/609/EEC, implemented in the United Kingdom by the Animals (Scientific Procedures) Act 1986.
2. Construction of section 2. Section 2(1) provides the primary definition of a regulated procedure. However, section 2(8) expressly excludes recognised agricultural practice from references to scientific procedure. That exclusion is substantive and applies irrespective of the purpose or motive for which the recognised practice is undertaken. The judge below therefore erred by treating the scientific purpose of the monitoring as determinative.
3. Application. The slug pellets were used in accordance with their authorisation and recognised agricultural practice. The subsequent scientific monitoring did not alter the character of that use. Such monitoring is consequently permitted without the licensing requirements applicable to regulated procedures. The court also rejected the submission that the study materially increased the risk to vertebrates.
4. Further reasoning and order. There was no need to construe article 62 narrowly merely because it derogated from the general data-protection rule in article 59; its true construction was unambiguous. Applying article 62 to the study would disproportionately interfere with the appellant’s property and confidentiality rights. The order of Judge Saffman and the CRD’s determination of 29 January 2016 were quashed.

1. High Court (Queen’s Bench Division): His Honour Judge Saffman, sitting as a Deputy High Court judge, refused the judicial review claim in [2017] EWHC 2491 (Admin).
2. Court of Appeal (Civil Division): The appeal was allowed. The lower court’s order and the Health and Safety Executive’s determination that the study fell within the article 62 data-sharing provisions were quashed.