Natural England can bring criminal prosecutions and has wide powers in connection with its functions of conserving, enhancing and managing the natural environment but it is not entitled to bring civil proceedings.
The High Court has considered this issue in Natural England v Cooper [2024] EWHC 625 (KB)
The case concerned archaeological features beneath 67 hectares of farmland at Croyde Hoe Farm in Devon, owned by the National Trust and adjacent to a site of special scientific interest. While further investigations were necessary, there were indications of a settlement of the Mesolithic or Neolithic period.
Andrew Cooper was the tenant of the farm under a periodic tenancy from year to year. The agreement reserved to NT all archaeological and heritage features above or under the ground. Cooper was not to break the surface of ground covering any archaeological or monuments site without NT’s prior written approval.
Natural England sought final injunctive relief to prevent Cooper ploughing approximately 30 hectares of the farmland – nine fields of mostly arable land – without its consent. Cooper argued that restraining him from cultivating the land, so that the fields must be left as pasture, infringed his rights under his tenancy and threatened the viability of the farm. The NT was not a party to the proceedings.
In April 2021, Cooper had been convicted for failing to comply with a stop notice served under the Environmental Impact Assessment (Agriculture) (England) (No 2) Regulations SI 2006/2522 but nevertheless ploughed three fields in June 2021 and a further two in April 2022. NE argued that an injunction with penal notice attached was the only effective way to procure Cooper’s compliance with the 2006 Regulations since he had complied with the interim injunction granted in May 2023.
NE is a statutory corporation funded by the government. Its powers are conferred by the Natural Environment and Rural Communities Act 2006, which entitles it to bring criminal proceedings and grants wide powers – including entering into agreements and acquiring or disposing of property – in the discharge of its functions.
While the judge saw no difficulty in features such as a World War II pillbox or man-made structures such as a barrow or tumulus which shape the land being treated as part of the landscape it was more difficult with small and scattered sub-surface or surface archaeological artefacts.
A general power under NERCA empowering NE to do anything conducive or incidental to the discharge of its functions did not extend to the issue of civil proceedings and neither did the 2006 Regulations. NE’s claim was dismissed.
Louise Clark is a property law consultant and mediator
