Administrative Court declines to set aside order resolving farmer’s judicial review claim

21/10/22

HHJ Keyser KC (sitting as a High Court Judge) has refused an application by a farmer, who owns and farms common land in the New Forest, to reopen her judicial review claim.

The Claimant is a New Forest commoner who turns out her cattle annually onto the New Forest to graze. New Forest commoners are the only commoners in England without quantified rights to graze: in theory they can graze unlimited cattle on the forest.

The Claimant brought a judicial review claim in 2020 arguing that the 2020 Basic Payment Scheme – a farming subsidy regime derived from EU law – was unlawful. The Secretary of State agreed and sought a stay of the proceedings to consult on a new scheme. A fresh scheme was introduced for the year 2021 onwards. The Secretary of State then filed Summary Grounds of Resistance accepting that the 2020 scheme was unlawful and suggesting a declaration to reflect this (as well as offering to pay the Claimant’s costs).

However, the dispute did not end there. A difference of opinion arose between the Claimant and the Secretary of State concerning whether or not the scheme was unlawful for the reasons admitted by the Secretary of State, and whether the declaration suggested by the Defendant was accurate. The Secretary of State argued that the 2020 BPS was unlawful, as it applied in the New Forest, because it directly coupled agricultural production to the receipt of farming subsidies: if farmers turned out more cattle they received more payments. What it failed to do was to also make provision for subsidies to be paid to farmers who carried out non-productive agricultural activities, such as keeping common land in a condition that made it suitable for grazing. The Claimant argued that the scheme was unlawful for that reason but also because the only kind of lawful scheme was one that tied the payment of subsidies to the extent of a farmer’s rights to graze.

HHJ Lambert made the declaration suggested by the Defendant in May 2021 but the Claimant applied to have it set aside. Following a delay for ADR, the parties appeared in Court on 10 October 2022 to argue their respective positions.

The Judge found in favour of the Secretary of State. He relied, in particular, on Article 39(2) of Commission Implementing Regulation EUR 809/2014, which provides that schemes may be based on “use or right of use of” of common land. The 2020 BPS had been a scheme based on use of the common and so was unlawful for the reasons identified by the Secretary of State.

The judgment is available here.