Natural England v Andrew Jonathan Chubb Cooper

A public regulator entrusted with specific responsibilities under a statutory regulatory scheme may have an incidental power to seek an injunction protecting the performance of those responsibilities. The power is not excluded because the scheme also provides criminal or civil sanctions, or because earlier prosecutions have failed to secure compliance.

Power to bring proceedings and standing to enforce public rights are distinct. A body with specific statutory responsibilities may have standing to seek an injunction without an Attorney General’s relator consent. Private contractual or tenancy rights cannot qualify public law obligations imposed by the regulatory scheme.

Natural England sought a permanent injunction restraining Andrew Cooper from cultivating land without consent under the Environmental Impact Assessment (Agriculture) (England) (No. 2) Regulations 2006. The High Court dismissed the claim, holding that Natural England lacked both power and standing to seek the injunction in its own name, although the judge stated that he would otherwise have granted the relief: [2024] EWHC 625 (KB).

Natural England appealed on the construction of its incidental powers under the Natural Environment and Rural Communities Act 2006 and on standing. The appeal also raised, but did not require determination of, the meaning of landscape in that Act. The central issue was whether Natural England could directly enforce the consenting regime by injunction.

Appeal allowed. The Court of Appeal granted the permanent injunction sought by Natural England without remitting the matter to the High Court.

1. Section 13(1) of the Natural Environment and Rural Communities Act 2006 embodies the common-law incidental-powers principle. Functions are construed broadly as the duties, powers and total activities entrusted to the statutory body. An incidental power must, however, relate to an actual statutory function and cannot be merely incidental to another incidental power or founded only on a general statutory purpose.
2. The 2006 Regulations entrusted Natural England with an integrated regulatory scheme. Its responsibilities included screening projects, obtaining and assessing environmental information, deciding applications for consent, imposing conditions, issuing stop and remediation notices, and enforcing compliance. Natural England therefore had an incidental power to seek an injunction protecting the discharge of those responsibilities.
3. The injunction was not merely consequential upon a failed prosecution. The regulatory scheme was directed to securing future compliance with the environmental impact assessment and consent requirements. The availability of offences, civil sanctions and enforcement notices did not make those remedies exhaustive. The principles in London County Council v South Metropolitan Gas Company [1904] 1 Ch 76 and Broadmoor Special Hospital Authority v Robinson [2000] QB 775 supported the existence of an implied power to obtain injunctive relief.
4. Power and standing were distinct. Attorney General consent to a relator action would address standing but would not confer vires. Natural England was not a member of the public seeking merely to enforce the criminal law. Its specific statutory responsibilities as regulator gave it standing to seek an injunction in its own name, without invoking the Attorney General.
5. The meaning of landscape in section 2 of the 2006 Act did not need to be decided. The court expressed doubt that the High Court’s narrow approach, excluding sub-surface archaeology without visual effect, was correct. The respondent’s tenancy rights could not qualify the public law obligations imposed by the 2006 Regulations. In the circumstances, his stated intention to continue cultivation justified a permanent injunction, and the order was not to be made conditional on any consent by the landlord.

1. Court of Appeal (Civil Division): allowed the appeal and granted the permanent injunction.
2. High Court of Justice, King’s Bench Division: dismissed Natural England’s claim for want of power and standing, while stating that it would otherwise have granted a final injunction, [2024] EWHC 625 (KB).