Since the Ban The Burn! campaign launched, a few people have been asking for information about the legal battles between Natural England and Walshaw Moor Estate(WME) that began when Natural England issued a Notice of Modification of Consent to WME in 2010.
This seems to be the sequence of events:
- Natural England first served a Notice of Modification of consent against Walshaw Moor Estate in March 2010. This was because Natural England judged that WME was carrying out burning far more extensively than Natural England permitted in the 1995 Notice of Consent, and that the new burning practices were damaging protected habitats.
- In April 2011, Walshaw Moor Estate Owner Richard Bannister sent Natural England an Assessment for Compensation claim that he would claim £31.8m compensation if Natural England was successful in amending the 1995 Consent as they intended.
- In 2011, Natural England also started proceedings for a criminal prosecution of Walshaw Moor Estate for carrying out damaging activities on a Site of Special Scientific Interest without consent, which is an offence under the Wildlife and Countryside Act 1981. Natural England dropped the prosecution before it came to court.
- Walshaw Moor Estate appealed against the Notice of Modification and a public inquiry heard the appeal in January 2012 and into early February. Natural England also seems to have pulled the plug on the public inquiry before its conclusions were made public.
- Meanwhile, in December 2011, immediately before the public inquiry started, Natural England had also issued a second Notice, this time under Regulation 23 of the Conservation of Habitats and Species Regulations 2010, that prevented the estate from undertaking any burning (for four months).
- WME applied to Leeds courts for a stay on this ban
- Leeds High Court rejected Natural England’s ban on burning WME and ordered a judicial review which would let WME examine the grounds for the ban in court
- It was at this point that Natural England dropped its prosecution of WME and agreed a “settlement package” with WME. There has been no public explanation of the Natural England’s reasons for dropping the prosecution, apart from their statement that the “settlement package” gives Natural England what it wanted, in terms of powers to prevent grouse-shooting activities that would damage the integrity of the protected site and the biodiversity it supports
- The House of Commons Environmental Audit Committee asked Natural England to explain how it enforced Wildlife and Habitats laws on Sites of Special Scientific Interest in general and on WME in particular. It didn’t really get any useful answers.
First Notice of Modification of Consent
In March 2010, Natural England issued Walshaw Moor Estate Ltd with a notice of modification of consent under s. 28E(6) of the Wildlife and Countryside Act 1981 (as amended). The legal background to this is that landowners like Walshaw Moor Estate Ltd, whose land is in a Site of Special Scientific Interest (SSSI), must have Natural England’s consent before carrying out operations on the land. Natural England issued the notice because of damage Walshaw Moor Estate Ltd was doing to the SSSI.
According to the Landmark Chambers website,
“The notice of modification of consent sought significantly to restrict certain management activities such as prescribed burning of heather and grazing.
This Notice of Modification of Consent included a limit to burning any given strip of blanket bog once every 25 years, instead of every 15-18 years as preferred by the estate. Natural England had consented to heather burning on WME in 1995.
The Business LInk website explains that,
“Where Natural England has previously issued a written consent to certain activities – but subsequently discovers that the activity is harmful to the special interest of the SSSI – it will try to reach an agreement with [the landowner] regarding changes in the management of the land. Where agreement cannot be reached, Natural England may withdraw or modify the consent.”
A 9th November 2011 email from Helen Phillips, then Chief Executive of Natural England, to Richard Benyon, the Department for Environment, Food and Rural Affairs (Defra) Minister, explains that Natural England and Walshaw Moor Estate tried to negotiate a common position on the Notice of Modification,
“that would have allowed the Estate to undertake certain activities as part of an HLS [Higher Level Stewardship] agreement. These negotiations were unsuccessful and the Estate appealed against the Modification in December 2010… The appeal will be dealt with by way of an inquiry which is listed to take place for 3 weeks commencing January 2012.”
Natural England started criminal proceedings against Walshaw Moor Estate
(ii) the Estate has a previous conviction for similar offences;
(iii) there was no offer of mitigation in the form of voluntary restoration.
We are satisfied that we have robust evidence to support this prosecution nevertheless the Estate has decided to plead not guilty.The judge at the recent pre-trial hearing questioned whether the Estate decided to plead not guilty.The judge at the recent pre-trial hearing questioned whether the Estate actually wanted to change their plea but at the moment their position remains that they will plead not guilty.The trial will be heard in the Crown Court on 17 September 2012.
A successful prosecution will allow Natural England to secure restoration orders via the court to ensure that the significant damage caused can be restored.”
More information about this comes from Natural England’s reply to Mark Avery’s Access to Information Request no 1494. The reply says that Natural England started
“Criminal proceedings… against the Walshaw Moor Estate relating to activities undertaken on the SSSI without Natural England’s consent contrary to the provisions of the Wildlife and Countryside Act 1981 (as amended). It is an offence to carry out certain operations, known as “operations likely to damage”, on a SSSI.
The alleged offences related to the building of tracks, paths, car parks, grips, ponds, butts and other associated infrastructure for which the Walshaw Moor Estate did not obtain Natural England’s consent.”
Walshaw Moor Estate appealed against Natural England’s Notice of Modification of Consent
If landowners feel consent has been unfairly refused or withdrawn, or unfair conditions imposed, they can appeal to the Secretary of State. This is what WME did. WME’s appeal was heard in a five-week public inquiry which started in Leeds in the New Year 2012.
Information on the website of Landmark Chambers, who represented WME in the inquiry, says that the inquiry’s remit was to
“examine not only important questions of moorland ecology, grazing and burning of heather for grouse rearing, in areas of blanket bog and heathland habitats, but also the Secretary of State’s powers and duties under the Habitats Directive and Wildlife and Countryside Act 1981.”
Natural England issued another Notice, under Regulation 23 of the Conservation of Habitats and Species Regulations 2010, banning heather burning, grazing and the use of vehicles on Walshaw Moor Estate
However, the plot had thickened – in December 2011 Natural England had served WME an additional Notice of Modification of Consent under Regulation 23, Conservation of Habitats and Species Regulations 2010, seeking an immediate ban on heather burning, grazing and the use of vehicles on blanket bog on Walshaw Moor.
Walshaw Moor Estate applied to Leeds courts for a stay of the ban
WME made an urgent interim application to the Administrative Court in Leeds to stay this additional Notice under Regulation 23, Conservation of Habitats and Species Regulations 2010. The Administrative Court in Leeds granted WME the stay.
WME’s application to continue the stay then went to the High Court in Leeds, where it was heard before Mr Justice Singh on Fri, 27 Jan 2012. It is listed in the High Court Hearings on the lawpages.com website as:
Interlocutory hearing for Interim Relief, CO/12569/2011, The Queen on the application of Walshaw Moor Estate Limited v Natural England.
Walshaw Moor Estate won judicial review and a continued stay of the ban on burning etc
Mr Justice Singh rejected Natural England’s Notice under Regulation 23 of the Habitats and Species Regulations and instead ordered a full judicial review of Natural England’s move to ban heather burning on blanket bog moorland. This was on the grounds that the case was potentially important and of wider public interest. Basically, he gave permission for the Walshaw Moor Estate to judicially review Natural England’s attempted enforcement of a ban on heather burning, grazing and the use of vehicles on blanket bog on Walshaw Moor. He also agreed with WME’s application that burning, grazing and vehicle use should be allowed, until the hearing of the judicial review.
Landmark Chambers , representing Walshaw Moor Estate in Leeds High Court, seems to give a partial interpretation of ‘wider public interest’ as meaning:
“The unprecedented action by Natural England to impose a ban on Walshaw Moor Estate in the South Pennines has major implications for grouse moor owners and land managers across England.”
Natural England dropped the prosecution, withdrew from the public inquiry and made a “settlement package” with Walshaw Moor Estate
Natural England withdrew from the public inquiry and dropped its prosecution of WME for carrying out “operations likely to damage” the Site of Special Scientific Interest. This information is given in Natural England’s reply to Mark Avery’s information request no 1494:
“The criminal proceedings were subsequently withdrawn as part of the overall settlement package with Walshaw Moor Estate in order to ensure the best possible outcome for the future management of the Moor.”
“confirming that they have now resolved their dispute regarding management activities at Walshaw Moor in the Pennines.”
Members of the public would like to know why Natural England backed off in the face of the proposed judicial review. The House of Commons Environmental Audit Committee also questioned Natural England about its ability to enforce the law – although in a fairly toothless way. Without getting much in the way of answers.
Mark Avery’s blog reports that Natural England’s legal costs were £1m. This is nearly 1/5th of its total annual budget for enforcing the law. The Daily Telegraph reported estimates that the legal costs of Mr Bannister, the WME owner, were also £1m. So there must be some rich lawyers in Leeds.
26/8/2012 – Corrections & clarifications -This post updates an earlier version, which didn’t make it clear that WME’s appeal against Natural England’s original Notice of Modification of Consent was heard in the public inquiry; or that the Leeds High Court hearing before Mr Justice Singh was the result of WME’s application for a stay of Natural England’s second Notice of Modification of Consent under Regulation 23, Conservation of Habitats and Species Regulations 2010, which issued an immediate ban on heather burning, grazing and the use of vehicles on blanket bog on Walshaw Moor.
30/8/2012 – Updated to correct the date when Natural England issued the original Notice to March 2010 (the previous version mistakenly dated it as 2011)
5/9/2012 – Updated to clarify that in November 2011, Natural England had two regulatory proceedings against Walshaw Moor Estate – criminal proceedings against WME for illegal works on the Moor, and an appeal by WME against Natural England’s 2010 Notice of Modification of Consent.