Secretary of State for Environment, Food and Rural Affairs v LJ Fairburn & Son Ltd & Ors, R (on the application of)

Paragraph 5(2) of Schedule 3 to the Animal Health Act 1981 requires compensation only for poultry which is healthy when actually slaughtered. It does not require compensation for poultry merely caused to be slaughtered, or for birds diseased at slaughter. Compensation is the value of the bird immediately before its slaughter. The statutory wording is clear, so a canon favouring constructions that avoid interference with property rights cannot alter it.

In the context of avian-influenza controls, condemnation of poultry is a control of use, not a deprivation of property. The compensation scheme struck a fair balance and was not manifestly without reasonable foundation.

Poultry farmers challenged policies governing compensation for birds affected by avian influenza. The former policy compensated for healthy birds actually slaughtered, while a later policy calculated compensation by reference to the health assessment at the outset of planned culling.

Mrs Justice Hill allowed judicial review on two grounds and declared the policies unlawful, holding that paragraph 5(2) of Schedule 3 to the Animal Health Act 1981 required compensation to be assessed when birds were condemned rather than when slaughtered. She rejected a separate challenge under article 1 of Protocol 1 to the ECHR. The Secretary of State appealed on statutory construction, and the respondents cross-appealed on A1P1.

1. Statutory construction. The appeal was allowed. Paragraph 5(2) of Schedule 3 to the Animal Health Act 1981 stipulates when compensation must be paid and how it is calculated; it does not identify when a right to compensation accrues. Its natural and ordinary meaning, read in context, is clear.
2. The Secretary of State must compensate only for poultry, other than diseased poultry, which is actually slaughtered under paragraph 5. There is no duty to compensate birds which are merely caused to be slaughtered, or birds diseased when slaughtered. Where the duty applies, compensation is the value of the bird immediately before it was slaughtered.
3. The respondents’ reliance on the canon discussed in Attorney General v Horner (1884) 14 QBD 245 was unnecessary because paragraph 5(2) was unambiguous. The court also doubted whether that canon, developed principally in cases concerning land rights, could be generalised to property with a finite lifespan and fast-acting disease.
4. A1P1. The cross-appeal was dismissed. In the statutory and factual context, condemnation was properly classified as a control of use rather than a deprivation of property. The decisions in Chagnon et Fournier v France (414174/06 and 44190/06) (15/10/2010) and SA Bio d’Ardennes v Belgium (44457/11) (21 November 2019) had significant persuasive value and illustrated a wider principle.
5. The compensation scheme struck a fair balance between the owners’ interests and the general interest. The applicable test was whether the measure was manifestly without reasonable foundation. The measures were not so characterised, and there was no breach of A1P1.

1. Court of Appeal (Civil Division) — The Secretary of State’s appeal from [2024] EWHC 65 (Admin) was allowed. The respondents’ cross-appeal on A1P1 was dismissed.
2. High Court of Justice, King’s Bench Division, Administrative Court — Mrs Justice Hill allowed the respondents’ judicial review application on two grounds, declared the compensation policies unlawful, and rejected the A1P1 ground: [2024] EWHC 65 (Admin).