Need to appeal a Stop Notice? Better not breach it

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It is possible to appeal a Stop Notice issued by Natural England – that is unless you breach it. A recent case from the South-West explains why.

Jutting out from between the popular surfing spots of Saunton Sands and Woolacombe Beach, Baggy Point is a rugged headland of waves, wind, and cliffs along the coast of North Devon. The 240-acre site, which has been owned by the National Trust since 1939, is brimming with history, including archaeological remains, Iron Age remnants, and a former Second World War training ground.

In recent years, however, Baggy Point has become the playing field for a dispute between Natural England, a DEFRA-sponsored government adviser for the natural environment, and Andrew Cooper, a farmer who leased 170 acres of land at Baggy Point from the National Trust more than 30 years ago.

Past or pasture?

The historical and cultural importance of Baggy Point has necessitated numerous government protections. Although Andrew Cooper was leasing the land, therefore, it had remained uncultivated, with Mr Cooper receiving payments under the Countryside Stewardship Agreement between 1992 and 2012 to help with the area’s upkeep.

As time went on, Mr Cooper decided to apply for a screening decision regarding a project to increase the productivity of these fields. In other words, he wanted to start cultivating his 170-acres of leased land.

Consent was denied. In addition to potentially containing protected Iron Age remains, the land had been used as a training area for American troops prior to the D-Day landings, due to its similarity to Normandy’s beaches. With the dummy pillboxes and old trenches still there to this day, the land was considered a site of historical significance, and therefore protected from cultivation or interference.

Cooper did not agree with Natural England’s decision and began cultivating the area using heavy ploughing equipment. In October 2017, following four years of negotiation, Natural England issued a Stop Notice. The Notice was ignored, and the cultivation continued.

What is a Stop Notice?

As an executive, non-departmental public body, Natural England has civil enforcement and prosecution powers for serious or persistent breaches of the Environmental Impact Assessment (Agriculture) (England) (No 2) Regulations 2006. One such power is a Stop Notice, which is served when an individual begins a project involving restructuring or uncultivated land in breach of the following regulations:

  • Regulation 4, which prohibits an individual from beginning an uncultivated land project at a certain, pre-determined threshold without obtaining a screening decision that allows the project to proceed.
  • Regulation 9, which prohibits beginning or carrying out a significant project without prior consent from Natural England.

Unless successfully appealed or withdrawn, a Stop Notice is served with immediate effect, with non-compliance resulting in a fine and even imprisonment.

“Not a jot of remorse”

Cooper pleaded guilty to contravening a Stop Notice at Exeter Crown Court on 7 April 2021. He was ordered to pay a £7,500 fine, plus £24,000 in prosecution costs and an appropriate surcharge. The farmer also received five months’ imprisonment in default. “This was deliberate, flagrant breaching of the law with the defendant knowing exactly what he was doing,” said Judge Peter Johnson. “He has shown not a jot of remorse.”

The story does not end there, however. While presenting his case for the defence, Mr Cooper had attempted to challenge the validity of the Stop Notice by claiming he had not been told about the pre-historic remains. He also later appealed the remediation orders on the grounds that the Judge’s rulings – namely, that this defence was unavailable, and the evidence was irrelevant or inadmissible – were wrong.

His appeals were thrown out by the High Court. According to the judge, it was not permissible for Cooper to challenge the Stop Notice’s validity because there had already been clear and ample opportunity for him to do so via an appeal to either the Secretary of State or judicial review.

Allowing an appeal at this stage would, in the judge’s opinion, create an incentive for individuals or businesses to ignore statutory procedure and raise arguments on the validity of Stop Notices as a defence to criminal charges.

A lesson in timing

Essentially, this case – and others like it – demonstrate the importance of avoiding Stop Notices entirely by ensuring all necessary consents are in place via either regulation 4 or regulation 8 requirements. As well as being expensive to appeal, Stop Notices are reputationally damaging for individuals or companies at a time when awareness of environmental issues and the need to protect the natural world are at an all-time high.

If a Stop Notice is issued, however, compliance is a must. As Cooper’s case demonstrates, defendants cannot appeal a Stop Notice once criminal proceedings start, so complying with its requirements while preparing a case for appeal is the only way to ensure a positive outcome.

Stop Notices can be appealed via Natural England and the Secretary of State. If an individual or business can successfully demonstrate that the prohibited work is not a significant project or does not exceed certain thresholds, a Notice may be withdrawn.

This article was co-authored by Katey Iliffe.

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