Imogen Bickford-Smith, R (on the application of) v The Secretary of State for Environment, Food and Rural Affairs

His Honour Judge Keyser K.C. :

Introduction and Summary

This is my judgment upon the claimant’s application to vary the order made on 10 August 2021 by HHJ Lambert sitting as a Judge of the High Court.

The claimant owns certain farmland in the New Forest on which she carries on agricultural activities. She also enjoys certain rights of common in relation to common land in the New Forest which give her the right, upon payment of a standard fee to the Verderers of the New Forest (the authorities who supervise the exercise of rights of common on that land), to graze animals there.

The claimant commenced these proceedings for judicial review in June 2020. In essence, she challenged the lawfulness of the Basic Payment Scheme (“BPS”) Policy and Rules for the 2020 Scheme Year (“the 2020 BPS”) as they applied to the New Forest. (I shall explain the grounds of the challenge later in this judgment.) On receiving the claim and recognising merit in it, the defendant applied for and obtained a stay of the proceedings for the purpose of carrying out a consultation process with a view to the revision of the Scheme for subsequent years. After that consultation had been completed, the defendant filed an acknowledgement of service and summary grounds of resistance, which conceded that the 2020 BPS was unlawful in one particular respect and that the claimant was entitled to a declaration to that effect.

Judge Lambert recorded that, as the Order had been made without a hearing, a party affected by it might apply to have it set aside, varied or stayed. That is what the claimant has done.

On this application, the claimant’s main contention is that the declaration in the Order is deficient because it identifies only one of the two ways in which the 2020 BPS was unlawful. It correctly declares that it was unlawful to exclude provision for payments in respect of “non-productive activities” (by which is meant, broadly, activities relating to the maintenance of the land rather than the production of food). But it fails to declare that it was unlawful to make any provision for payments that were coupled to the level of productive activities: the Scheme would (the claimant says) have been unlawful even if the deficiency mentioned in the Order had been remedied. In response, the defendant contends that the claimant has misunderstood the relevant legislation; the declaration in the Order accurately identifies the unlawfulness.

The claimant has also contended that she is entitled