Judicial review – a practical tool for farming businesses?

As farmers are often all too painfully reminded, the agriculture sector is highly regulated and frequently subjected to wide-ranging policy changes. Over the last few years, food security, environmental regeneration and competing land use objectives have been key topics of national debate which have driven various policy changes, not least the development and implementation of Environmental Land Management schemes (ELMs). On top of that, the 2024 general election has led to a Labour government that has introduced reforms to various policy areas, including renters’ rights and inheritance tax, that have the potential to significantly impact on modern farming businesses.  

Recent developments within the sector have shown that farming businesses are increasingly willing to scrutinise how decisions are made by public bodies, particularly when major policy changes are introduced suddenly, without consultation, or in a way that appears inconsistent or unlawful.  

Judicial review, which is a type of claim that is brought to challenge the legality of acts or omissions by public bodies, is often perceived as a complex and costly last resort, and therefore out of reach for farming businesses. However, when used carefully, it can be a powerful and proportionate tool for challenging decisions made by public bodies that have a serious impact on rural businesses.  

This article considers when judicial review may be available in an agricultural context, what it can realistically achieve, and the key points that farming businesses should understand before pursuing it.  

What is judicial review? 

Judicial review is a type of civil claim which is used to challenge an unlawful act or omission by a public body (such as a government department, local authority or statutory agency), and in successful claims, the High Court has the power to compel public bodies to take the necessary steps to comply with their legal obligations.  

Judicial review is not an appeal of the merits of a public body’s decision. The Court will not simply impose what it considers the right decision to be in place of the public body’s decision, as that is not the Court’s constitutional role. Instead, the Court will review the lawfulness of the public body’s decision-making process. In broad terms, a public body’s decision may be challenged where it has acted outside its legal powers, failed to follow required procedures, acted irrationally, failed to take into account relevant considerations when coming to a decision, failed to adhere to legitimate expectations, or acted incompatibly with its legal obligations.  

When does judicial review arise in agricultural matters? 

Judicial review issues arise more frequently in the agricultural sector than many people may realise. Common examples include decisions relating to ELMs, waste disposal, regulatory enforcement, commons and grazing rights, planning decisions, and refusals or conditions attached to statutory licences or consents.  

Timing – why speed matters 

Judicial review claims are subject to strict time limits. A claim must be brought promptly and usually within three months (six weeks in planning matters) of the decision being challenged. It is therefore essential that any potential claimant thinking about challenging a public body’s decision takes legal advice as soon as possible, to give them the best possible chance of taking comprehensive advice and, should they decide to proceed, preparing the claim.  

Cost and risk – common misconceptions 

Commencing any claim comes with significant risks, particularly in terms of paying legal costs and the risk of being ordered to pay ‘adverse costs’ (i.e. a portion of the other side’s legal costs) if they lose at a final hearing.  

However, judicial review claims often resolve before a full hearing, costs can sometimes be shared between groups of claimants (if multiple individuals have been affected by the public body’s decision, then group action is a common occurrence), and the financial consequences of not challenging an unlawful decision can be far greater.  

In addition, in cases concerning environmental protection, special costs rules may apply which cap each party’s potential exposure to adverse costs at relatively low sums.  

What can judicial review claims achieve? 

If a judicial review claim succeeds, common remedies issued by the Courts include declarations confirming the illegality of the public body’s decision and clarifying what it needs to do to comply with its legal duties, the quashing of an unlawful decision, a mandatory order requiring the public body to retake the decision, and the suspension of enforcement action whilst decisions are retaken.  

It is important to note that one type of remedy which is not routinely awarded in judicial review claims is financial compensation for damages or losses suffered by the claimant. It can be possible to make a claim for compensation, but this is not the primary purpose of judicial review claims, and it is not usually the automatic result of a finding that a public body has acted unlawfully.  

Our experience 

Birketts has significant experience in acting on both sides of judicial review claims in the agricultural sector.  

In 2025, Danielle Spalding, Edward Venmore and Arron Jolliffe acted for a group of over 30 farmers across England to threaten judicial review proceedings against DEFRA and the Rural Payments Agency following the sudden closure of the Sustainable Farming Incentive 2024, which resulted in the scheme being partially reopened for the benefit of around 3,000 farming businesses nationwide.  

In 2026, Danielle Spalding and Arron Jolliffe represented Dartmoor Commoners’ Council in defending judicial review proceedings brought by Wild Justice concerning stocking levels on Dartmoor, which had the potential to impact on hundreds of farming businesses across the moor. 

Sara Sayer and Natalie Kent are currently involved in landmark litigation on the failure by the Forestry Commission to require a full Environmental Impact Assessment (EIA) on a commercial afforestation scheme. 

Our experience is that judicial review is not simply a remedy of last resort, but a practical and effective safeguard in an increasingly complex regulatory landscape in the agricultural sector. We are also acutely aware that judicial review is increasingly being used by environmental groups and other organisations with competing land use objectives to challenge decisions affecting farming businesses. Our recent experience in acting on both sides of judicial review claims means we understand both the pressures on farmers and land managers who may need to bring a claim and public bodies responsible for regulatory action in the agricultural sector who may find themselves subject to one. 

We have a large team, across our offices, that specialises in advising on challenges to public law rights and duties. Our experts handle judicial reviews across various sectors including tax, planning, and environmental disputes.  The team is experienced in navigating the complexities of public law litigation.