Environmental assessment — Screening — Environmental Impact Assessment (Uncultivated Land and Semi-natural Areas)(England) Regulations 2001 — Application of manure to grassland farm — Whether increase in productiveness “intensive agricultural purposes” — Whether intervention to natural surroundings “intensive agricultural purposes”
The appellant owned a farm on Dartmoor. Following neglect and the abandonment of the holding by the tenants in 2002, the appellant applied to four fields, which consisted of grazing moorland, farmyard manure and calcified seaweed in order to make the grass palatable to cattle. In June 2004, she was convicted of applying those materials without having applied for, or having, the consent of the Secretary of State, contrary to regulation 19 of the Environmental Impact Assessment (Uncultivated Land and Semi-natural Areas)(England) Regulations 2001. The deputy district judge found that the land fell within the description “uncultivated land, or semi-natural areas”, and concluded that the project came within the definition “intensive agricultural purposes” as contemplated by regulation 2(1) of the 2001 Regulations. The appellant appealed by way of case stated. In issue was whether: (i) an increase in the productiveness of a given area, or an intensification of agricultural purposes to which the land was put, came within the definition of “intensive agricultural purposes”; and (ii) the appellant’s project amounted to an intervention in the natural surroundings and landscape involving the use of uncultivated land or semi-natural areas for intensive agricultural purposes.
Held: The appeal was allowed. There was no suggestion that the volumes of the applications used were calculated to raise the productivity of the land above what could normally be expected of such land had it not fallen into a state of neglect. The work carried out by the appellant could not be described as an intervention for intensive agricultural purposes, and the draftsmen of the regulations did not intend to catch a project that was concerned only to bring back land to a normal level of agricultural productivity. The answers to the questions in the case stated were: (i) no, unless the productivity of the land for agricultural purposes is intensified above the norm; and (ii) no.
The following case was referred to in this report.
Aannemersbedrijf BV v Gedeputeerde Staten van Zuid-Holland C-72/95 [1997] All ER (EC) 134; [1996] ECR I-5403, ECJ
This was an appeal by the appellant, Ellen Alford, by way of case stated by Deputy District Judge Tate, sitting in Plymouth Magistrates’ Court, following the appellant’s conviction of an offence contrary to regulation 19 of the Environmental Impact Assessment (Uncultivated Land and Semi-natural Areas)(England) Regulations 2001 on informations preferred by the respondent, the Department for Environment, Food and Rural Affairs.
William Batstone (instructed by Chanter Ferguson, of Bideford) appeared for the appellant; Peter Blair (instructed by the legal department of the Department for Environment, Food and Rural Affairs) represented the respondent.
Giving judgment, Brooke LJ said: This is the judgment of the court.
[1] This is an appeal by way of case stated by the defendant, Ellen Mary Alford, arising out of her conviction at Plymouth Magistrates’ Court on 10 June 2004 on four charges ofcarrying out projects on land that she owned at Vixen Tor Farm, Merrivale, Dartmoor, without obtaining a screening decision or the grant of consent by the Secretary of State, contrary to regulation 19 of the Environmental Impact Assessment (Uncultivated Land and Semi-natural Areas)(England) Regulations 2001 (the 2001 Regulations).
[2] The projects in question involved the application of farmyard manure and calcified seaweed to four of her fields between 31 March and 13 April 2003. In the case stated, Judge Tate said that he found the following facts:
A. No application was ever made for a screening decision, and no consent was given by the Secretary of State for the project.
B. Vixen Tor Farm is a grassland farm consisting of approximately 56 acres of land bordering the open common land of Dartmoor of which the four compartments of land referred to in the informations, Vixen Tor, and Fields 1, 2 and 3, form part.
C. From 1966 until 2002 the farm was tenanted by farmers called Cole. It appeared to have been abandoned by them. There was no evidence of cultivation, nothing was applied in terms of fertilizer or additives, and it was kept as grazing moor land. It was maintained in its natural habitat. The boundary walls and fences had been allowed to fall into disrepair and livestock from the common land had relatively unrestricted access to the farm.
D. The land came within the description “uncultivated land, or semi-natural areas”.
E. The appellant carried out an intervention in the natural surroundings and landscape of the four compartments of land, by the application of farmyard manure and calcified seaweed. The purpose was to make the grass palatable to cattle. It was intended to graze 40 suckler cows on the land. The boundary walls and fences had been repaired and made stock proof. On Vixen Tor Field, Field 1, and Field 2 farmyard manure was spread at the rate of four cubic yards per acre, and calcified seaweed at the rate of 200 kilos per acre. On Field 3 only farmyard manure was spread, at the rate of four cubic yards per acre.
[3] The case stated continued in the following terms:
3. It was contended by the Appellant that the project did not involve the use of the land for “intensive agricultural purposes”. She contended that the question was not whether the project intensified the agricultural purposes to which the land was put, but whether the land was used for intensive agricultural purposes. Reliance was placed upon a definition of the word “intensive” in the New Oxford Dictionary of English (Second Edition 2003) “(of agriculture): |page:12| aiming to achieve maximum production within a limited area, especially by using chemical and technological aids; intensive farming. Often contrasted with extensive”.
4. It was contended by the Respondent that any works to increase the agricultural usefulness of the land, thereby intensifying the agricultural purposes above the current agricultural purposes, met the requirement. Reliance was placed upon the definition of the word “intensive” in the Oxford English Dictionary: “applied to methods of cultivation, fishery etc, which increase the productiveness of a given area; opposed to extensive in which the area of production is extended”.
5. I concluded that prior to 2002 no effort had been made to farm the land and it had been effectively abandoned. The appellant had repaired the boundary walls and fences and made the farm stock proof. The project involved the application of farmyard manure and calcified seaweed to the land in order to increase its productive value, and enable the raising of 40 suckler cows on the land. I decided that the project came within the definition of use of the land for intensive agricultural purposes, and followed the definition of the word “intensive” in the Oxford English Dictionary.
I found the appellant guilty of all four offences. I fined the appellant £250 on each offence making a total of £1,000 and ordered her to make a contribution to the prosecution costs of £5,000.
6. The question for the opinion of the High Court is what is meant by the phrase “intensive agricultural purposes” in regulation 2(1) of the Environmental Impact Assessment Regulations 2001. Does an increase in the productiveness of a given area, or an intensification of the agricultural purposes to which the land is put come within the definition? Did the appellant’s project amount to an intervention in the natural surroundings and landscape involving the use of uncultivated land or semi-natural areas for intensive agricultural purposes?
[4] The explanatory note to the 2001 Regulations makes it clear that they are concerned to implement two EC directives that have a bearing upon the control of projects for the use of uncultivated land and semi-natural areas in England for intensive agricultural purposes. These are Council Directive 85/337/EEC, as amended by Council Directive 97/11/EC of 3 March 1997, (the EIA Directive), on the effect of certain public and private projects upon the environment, and Council Directive 1992/43/EEC, as amended (the Habitats Directive), in so far as it has any application to such projects. Mr Peter Blair, who appeared for the respondent department (DEFRA), accepted that although the contents of the Habitats Directive might colour the department’s decision-making process once a project had been correctly identified as being one involving the use of uncultivated land or semi-natural areas for intensive agricultural purposes, they could not affect one way or other the question of whether that project had been correctly so categorised.
[5] The EIA Directive was implemented in our national planning law by the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 (the 1999 Regulations). The agricultural or agriculturally related operations that are most relevant to the uncultivated land provisions with which we are concerned do not, however, require planning permission. A parallel system of control, administered by DEFRA, was therefore required to ensure that the requirements of the EIA Directive were also complied with in the agricultural sphere. Hence the 2001 Regulations. The scheme set out in both the 1999 and the 2001 Regulations provides that if a “project” falls within one of the categories set out in Annex II of the EIA Directive, (and if, in connection with the 1999 Regulations, its scale exceeds the threshold, if any, that is set out in those regulations in respect of that type of project), the relevant statutory authority must consider it and make what is called a screening decision. It has to decide whether the project’s effects are sufficiently significant, so far as the environment is concerned, to warrant the preparation of what is called an environmental statement. The publication of this statement will then inform the decision-making process that is concerned with determining whether to permit the project to proceed notwithstanding its effect upon the environment.
[6] From the outset, the EIA Directive divided the projects that might fall within its ambit into two lists. If a project were placed in the list in Annex I, it would be mandatory to provide the requisite statement. If it were placed in the list in Annex II, on the other hand, it would be for the member states to decide whether a statement was required. The preamble to the 1997 amending directive shows how experience had shown that the scheme should be strengthened in certain respects. The list in Annex I, in particular, was greatly enlarged, and the list in Annex II was also extended.
[7] Paragraph 1(b) of Annex II of the EIA Directive, both in its original and in its amended form, includes among the projects that may, at the discretion of a member state, be subject to an environmental impact assessment:
Projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes.
[8] This is included in a list numbered 1 under the heading “Agriculture, silviculture and aquaculture”. The other items on this list, as it appears in the amended directive are:
(a) Projects for the restructuring of rural land holdings;
(c) Water management projects for agriculture, including irrigation and land drainage projects;
(d) Initial afforestation and deforestation for the purposes of conversion to another type of land use;
(e) Intensive livestock installations (projects not included in Annex 1)
(f) Intensive fish farming;
(g) Reclamation of land from the sea.
[9] Incidentally, Annex I to the EIA Directive includes in its amended form a new item 17:
Installations for the intensive rearing of poultry or pigs with more than
(a) 85,000 places for broilers, 60,000 places for hens;
(b) 3,000 places for production pigs (over 30 kg); or
(c) 900 places for sows.
With this exception, the directive casts no further light on the meaning of the word “intensive”.
[10] In the field of planning law, the 1999 Regulations excluded plots less than 0.5ha in size from consideration if they were otherwise embraced by category (b) in the list of agricultural projects in Annex II of the directive, but the 2001 Regulations contain no such threshold. DEFRA has explained in a helpful guidance note on its website that it decided not to apply thresholds because some very small areas of land may be environmentally valuable.
[11] We must now say a little about certain features of the 2001 Regulations before we turn to the question of interpretation at the centre of this appeal.
[12] Regulation 2, which is concerned with “Interpretation”, identifies the two directives that the regulations are concerned to implement, and regulation 2(2) provides that:
(2) Unless it is otherwise provided, expressions used both in these Regulations and in the EIA Directive or in the Habitats Directive shall have the same meaning in these Regulations as they have in those respective Directives.
[13] Regulation 2(1) defines the word “project” as meaning:
(a) the execution of construction works or other installations or schemes; or
(b) other interventions in the natural surroundings and landscape,
involving the use of uncultivated land or semi-natural areas for intensive agricultural purposes.
[14] It is not in issue on this appeal that the appellant’s land was properly to be regarded as uncultivated (or a semi-natural area); the question that we have to determine is whether her project involved the use of her land for intensive agricultural purposes. If it did, it did not qualify for any exemption under regulation 3(2) or (3), and regulation 4 prohibited her from beginning or carrying out a project without first obtaining a screening decision. Regulation 5 shows that the screening process enables the Secretary of State to decide whether the project is likely to have a significant effect upon the environment. If it does, it becomes a “relevant project” for the purposes of the regulations so that it may not be begun or carried out without the Secretary of |page:13| State’s consent. Finally, regulation 19, under which the appellant was convicted, provides that:
Any person who begins or carries out a project without first obtaining either a decision that the project is not a relevant project or a decision granting consent for the project in accordance with these Regulations shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
[15] We have been told that there is no English or European Court of Justice (ECJ) case law that casts any light on the meaning of the words “intensive agricultural purposes”. It is, however, instructive to note that in Aannemersbedrijf PK Kraaijeveld BV v Gedeputeerde
Staten van Zuid-Holland C-72/95 [1996] ECR I-5403, the ECJ was concerned to interpret the words “canalization and flood-relief works” that appeared in point 10(e) of Annex II to the EIA Directive in its unamended form. One of the questions that arose in that case was whether the phrase embraced dyke work along navigable waters that was carried out for the purpose of retaining water and preventing floods.
[16] After observing that the different language versions of point 10(e) fell into two categories according to whether the terms employed denoted the idea of flooding – the English and Finnish versions did, while nine other versions, including the Dutch (which referred merely to “canalization and regulation of watercourses”) did not – the court said, in paras 30 to 33:
30 Given that divergence, one must go to the purpose and general scheme of the directive. According to Article 1(2) of the directive, “project” means the “execution of construction works or of other installations or schemes” and “other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources”. According to Article 2(1), the directive is aimed at “projects likely to have significant effects on the environment by virtue inter alia of their nature, size of location”. Article 3 provides that the environmental impact assessment is to identify, describe and assess the direct and indirect effects of a project on human beings, fauna and flora, soil, water, air, climate and the landscape, material assets and the cultural heritage.
31 The wording of the directive indicates that it has a wide scope and a broad purpose. That observation alone should suffice to interpret point 10(e) of Annex II to the directive as encompassing all works for retaining water and preventing floods, and therefore dyke works, even if not all the linguistic versions are so precise.
32 Even if, as argued by the Government of the Netherlands, dyke works consist in the construction or raising of the height of embankments in order to contain watercourses and avoid flooding, works retaining a static quantity of water, rather than a running watercourse, may have a significant effect on the environment within the meaning of the directive where they are liable permanently to affect the composition of the soil, flora and fauna or the landscape. Such works must therefore fall under the directive.
33 Consequently, the argument of the Government of the Netherlands that dyke work does not alter the course of a waterway is not well founded.
[17] This judgment contains a salutary reminder that, in interpreting regulations based upon EC law, it is incumbent upon a national court, if confronted with a dispute over the meaning of a phrase used in a directive, to identify the purposes of the directive and to adopt a meaning (provided that the words are capable of bearing that meaning) that best promotes the wide scope and broad purpose of the directive.
[18] When we first read these papers, we were surprised to see that a project that involved no more than the reinvigoration of farmland that had been badly neglected for many years could properly be categorised as one that used the land for intensive agricultural purposes. Mr Blair did not suggest that the application of farmyard manure and calcified seaweed in the volumes described in finding E in the case stated (see [2] above) could have been calculated to raise the productivity of the land above what could normally be expected of such land had it not fallen into a state of neglect. We were fortified in my original impression by the definition contained in the second edition of the New Oxford Dictionary of English (2003), at p901:
intensive
(of agriculture) aiming to achieve maximum production within a limited area, especially by using chemical and technological aids: intensive farming.
For what it is worth, Mr Blair accepted that no chemical or technological aids had been used in this case.
[19] Our initial impressions were then confirmed by DEFRA’S own guidelines, in which it said, in para 15:
We will need to judge individual cases to see whether the land use resulting from the proposed operations is “for intensive agricultural purpose”. We will take account of whether the project involves using the land at greater than the average agricultural intensity for the activity in question.
(Emphasis added.)
[20] Mr Blair, however, argued that his client was entitled to take the view that this project qualified for screening under the 2001 Regulations. He said that uncultivated and semi-natural areas have been decimated by agricultural practice in the decades since the second world war, and that this process has brought about the destruction of important habitats for flora and fauna. As a result, species of flora and fauna have been seriously damaged and even extinguished.
[21] In this case, the land had been abandoned to nature for decades without the application of fertiliser – the evidence showed that it contained less than 10% of rye grass and clover, on which cattle will thrive – and he said that there can be a significant effect upon the environment from a relatively small intensification of the agricultural productiveness of an area. Through neglect, the land had become a significant habitat for acid-loving flora, and the appellant’s intervention was intended to bring this state of affairs to an end. In these circumstances, he submitted that a project designed to cultivate previously uncultivated land was one designed for an intensive agricultural purpose. It was proper to compare the state of the land after it had been fertilised with its neglected state before the project commenced. This was the legitimate comparison, and not a comparison with land in a normal state of cultivation.
[22] Mr Blair explained to us the dilemma that faced his client in trying to police the regulations if its preferred approach was not upheld. It is relatively easy to identify, for screening purposes, a project that intensifies the agricultural potential of the land over and above its pre-existing state. It is far less easy to identify projects that intensify the agricultural productivity of land above the norm for land in an ordinary state of cultivation, and the need to protect threatened flora and fauna is sufficiently pressing that the court should accept that his client’s approach was correct in law. In this context, he drew comfort from the Oxford English Dictionary meaning of “intensive” that the district judge quoted in para 4 of the case stated: see [3] above.
[23] When one examines that definition, however, and the 19th century examples of the usage of the phrase, it is obvious that the distinction made in the dictionary between intensive cultivation and an intensive fishery on the one hand, and extensive cultivation and an extensive fishery on the other, show that what is in contemplation is an increase in the productivity of cultivated land, or of a fishery. The two suggested options are to use intensive methods in order to obtain greater productivity from the same area, or to eschew intensive methods and to extend the area of production. I do not consider that this definition takes Mr Blair’s case any further forward.
[24] In his written submissions, he drew attention to the fact that the Secretary of State for Environment, Food and Rural Affairs is identified at the start of the 2001 Regulations as a minister designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to measures relating to the conservation of natural habitats and of wild fauna and flora. This reference was needed, however, to show that she had the legal power to introduce regulations to give effect to the Habitats Directive. We have already observed, however, that there is nothing in the Habitats Directive that throws any useful light on the interpretation of the words “for intensive agricultural purposes”.
[25] We did not obtain any assistance from DEFRA’s explanation in its guidelines that relevant cultivations could include spreading soil or |page:14| other material, including fertiliser or lime, in excess of existing routine application rates. Even if fertiliser and lime had not been applied for many years (so that there were no existing routine application rates and any new application would have exceeded what was there before), this explanation of the concept of “cultivations” casts no light at all upon the meaning of the words “for intensive agricultural purposes”, upon which, as we have observed, DEFRA’s guidelines favoured the appellant’s case.
[26] Nor did we obtain any assistance from the argument that DEFRA had decided not to insert any quantity threshold criteria in relation to this item in the first list in Annex II, whereas such thresholds appeared elsewhere in the EIA Directive and in the 1999 Regulations. Either this project came within the definition of “project” in Regulation 2 (see [13] above) or it did not.
[27] In our judgment, it did not. We do not consider that what was done in this case was capable of being described as an intervention for intensive agricultural purposes, and although we remind ourselves that the EIA Directive has a wide scope and a broad purpose, we do not consider that its framers intended it to catch a project that was concerned only to bring land back to a normal level of agricultural productivity.
[28] For these reasons, we would allow this appeal and grant the appellant a defendant’s costs order both in this court and below.
[29] The answers to the questions posed by the deputy district judge are therefore:
(i) No, unless the productivity of the land for agricultural purposes is intensified above the norm.
(ii) No.
Appeal allowed.
