Imogen Bickford-Smith, R (on the application of) v The Secretary of State for Environment, Food and Rural Affairs

A scheme distributing agricultural subsidies for common land may calculate payments in proportion to productive use, provided that it also recognises qualifying non-productive agricultural activity. The requirement to decouple subsidies from production is achieved by including support for activities maintaining land in a condition suitable for grazing or cultivation. A scheme is unlawful where it omits that non-productive element and thereby directly couples payment to production. A claim for compensation arising from an unlawful scheme requires separate pleading and proof and is not an appropriate remedy on an inadequately formulated application to vary a declaratory order.

The claimant, who farmed land and exercised common rights in the New Forest, challenged the operation of the 2020 Basic Payment Scheme. An earlier order granted permission for judicial review and declared the scheme unlawful because it made no provision for subsidies relating to non-productive activities maintaining the common.

The claimant applied to vary that order. She sought a wider declaration that any payment linked to productive use or marking fees was unlawful, together with relief requiring recalculation or compensation. The central issues were whether the scheme could lawfully calculate payments by reference to productive use and whether further monetary relief was available.

1. Application refused. The declaration made by Judge Lambert remained in force, subject only to minor redrafting for clarity. The claimant’s proposed wider declaration was rejected.
2. Article 39(2) of the Commission Implementing Regulation (EU) No. 809/2014 permits the allocation of subsidy in proportion to beneficiaries’ use of common land. That provision was not shown to conflict with the objective of decoupling support from production.
3. The decoupling objective was achieved by requiring provision for non-productive agricultural activity, rather than by prohibiting all relationship between payment and productive use. Accordingly, payments calculated by reference to productive use were not unlawful merely because they were proportionate to that use, provided that the scheme also covered qualifying non-productive activity.
4. The definition of agricultural activity in article 4(1)(c) of the Council Regulation (EU) No. 1307/2013 required more than mere inactivity for the purposes of non-productive activity. The 2020 scheme was unlawful because it omitted that category, not because it used marking fees as a measure of productive use.
5. The claimant’s request for increased payments was in substance a claim for compensation. No loss or damage had been pleaded, particularised or proved, and the claimant did not seek to quash and replace the scheme. Any compensation claim would have to be brought separately under Part 7. The judge stated, without deciding the point because it had not been argued, that a claim for Francovich damages would require the three conditions identified in Joined Cases C-46/93 and C-48/93, Brasserie du Pêcheur SA and Factortame Ltd [1996] ECR I-1029.
6. The claimant was ordered to pay the costs of the variation application, subject to agreement or summary assessment on the papers.

not stated in the judgment.