High Court finds DEFRA unlawfully failing to compensate farmers for preventive culls

19/01/24

Under the Animal Health Act 1981, the Secretary of State for Environment, Food and Rural Affairs has the power to cull healthy birds in order to curb the spread of avian influenza, subject to the payment of compensation. Due to widespread recent outbreaks of a highly virulent form of avian influenza and resource constraints, the Animal and Plant Health Agency (“APHA”) has often delayed carrying out the cull after having condemned birds to be culled. As a result of those delays, in the interim period significant numbers of healthy birds have become affected with avian influenza. Under APHA’s compensation scheme, these birds were not compensated, effectively allowing the Secretary of State to financially benefit from his own delay.

The Claimants, who are poultry farmers who had significant losses due to this scheme, supported by the National Farmers’ Union as intervener, successfully argued that the correct interpretation of paragraph 5(2) of Schedule 3 to the Act is that the obligation to compensate accrues at the time that healthy birds are condemned to be culled, and not at the later point that they are actually culled. The Secretary of State now has to reconsider the compensation to be paid to the Claimants.

The Court further held that the obligation to compensate farmers is a continuing obligation, such that there is no issue of limitation for any farmers affected by the unlawful scheme.