Natural England v Andrew Cooper

A statutory corporation may exercise incidental powers only where they are conducive or incidental to the discharge of an identified statutory function. A general statutory purpose does not, without more, provide an anchor for a free-standing power to sue.

The Environmental Impact Assessment (Agriculture) (England) (No. 2) Regulations 2006 extend Natural England’s regulatory remit to archaeological heritage, including archaeological material which is not part of the landscape. They do not, however, confer standing to bring civil proceedings for an injunction where the statutory scheme provides criminal and regulatory sanctions but no civil cause of action. The appropriate route for public-interest injunctive proceedings was a relator action involving the Attorney-General.

Natural England sought a final injunction restraining Andrew Cooper, a tenant farmer, from cultivating specified fields without first obtaining consent or a screening decision under the Environmental Impact Assessment (Agriculture) (England) (No. 2) Regulations 2006. The fields contained or potentially contained Mesolithic flint scatters, wartime pillboxes and associated archaeological features.

Natural England relied on its incidental powers under section 13 of the Natural Environment and Rural Communities Act 2006 and section 37 of the Senior Courts Act 1981. Cooper argued that Natural England had acted outside its remit and lacked standing to bring the claim. The central issues were whether archaeological heritage fell within Natural England’s regulatory remit and whether it had power to sue in its own name for injunctive relief.

1. Claim dismissed. Natural England lacked power and standing to bring the claim for injunctive relief in its own name.
2. Section 2 of the Natural Environment and Rural Communities Act 2006 concerned the natural environment and included conservation and enhancement of the landscape. Visible or topographically significant features, including pillboxes, trenches and monuments, could form part of the landscape. Small, scattered Mesolithic flint artefacts without material visual impact on the land were not properly part of the landscape for that purpose.
3. The 2006 Regulations nevertheless extended Natural England’s regulatory remit to archaeological heritage. Their treatment of archaeological heritage as an aspect of the environment, and their conferral on Natural England of functions concerning screening decisions, consent, stop notices and remediation notices, supplied a regulatory basis for requiring information about archaeological effects.
4. Section 13(1) of NERCA had to be read in the context of Part 1 as a whole. Its incidental power was derivative of Natural England’s functions, not its general purpose. A power to sue for an injunction was not conducive or incidental to the function of prosecuting offences under section 12 or to the functions conferred by the 2006 Regulations. It was a distinct, free-standing power.
5. The express power to institute criminal proceedings, the civil sanctions under regulation 30A and the statutory consequences for breach of enforcement undertakings pointed against implying a civil power to sue. The absence of a provision equivalent to section 222 of the Local Government Act 1972 was significant. Natural England could seek injunctive relief through an Attorney-General relator action.
6. Had standing existed, the court would have granted an injunction. The history showed a real risk of continued breaches and that criminal sanctions had not deterred cultivation. Chain harrowing would have been excluded, and the injunction could have ceased on Natural England’s consent under the Regulations or the National Trust’s consent under the tenancy agreement. The proposed injunction would not have breached Cooper’s Convention rights.