Ban the Burn is underwhelmed by Defra’s 29th January press release about proposed legislation to prevent the burning of heather and other vegetation on protected blanket bog habitats.

The UK government has been forced to legislate after it was clobbered by the EU Commission’s legal case – initiated by the RSPB and Ban the Burn back in 2012/13 – for not enforcing EU wildlife and habitats protection laws on Walshaw Moor Estate and other EU-protected uplands.

The UK government’s first response was to introduce a voluntary ban, to be signed by grouse moor owners and managers of EU-protected sites. Grouse moor owners and managers declined (including Richard Bannister, owner of Walshaw Moor Estate Ltd. HIs refusal to sign the voluntary ban caused Natural England to replace the existing land management agreement with the 2017-2042 Catchment Restoration Plan.)

So far information is sketchy. Apparently the detail of the proposed legislation in England will be published in April, according to the International Union for the Conservation of Nature (UK).

In the meantime, here are our immediate questions and comments.

Why is the proposed legislation being introduced through Statutory Instrument?

We are not happy with this, it is a form of stealth legislation that avoids public and Parliamentary scrutiny and debate.

 What exactly is going to be in this legislation? The International Union for the Conservation of Nature (UK) says the detail of legislation around the licensing of burning on peatlands is due for release in April in England.  Apparently the timescale for it to be implemented is October 2021, in time for the burning season.

We want the proposed legislation to be published in good time for a 6 week public consultation to take place, and for it to be subject to Parliamentary Debate as a proper Bill – not a Statutory Instrument that slides under MPs’ radar.

Massive areas of deep peat remain completely unprotected

The proposed legislation only covers deep peat (over 40cm depth) in Sites of Special Scientific Interest that are also Special Protection Areas & Special Conservation Areas.

So the proposed legislation will allow a huge amount of burning to continue – even on deep peat.

Even on deep peat in the protected areas, licensed burning will be permitted for a variety of dubious reasons:

• for conservation purposes
• to reduce wildfires risk
• when the land is rocky or more than 50% scree

Burning on shallower peat, which the new legislation will permit, is equally bad for climate, habitat and hydrology.

The International Union for the Conservation of Nature UK Peatland Programme points out using any depth definition of peat is a problematic hangover from the days when peat was an extractive commodity and there was a commercial interest in identifying deep peat deposits. Depth definitions say nothing meaningful about the peatland ecosystem. Peat varies in depth from very shallow areas where peat is forming or degrading, to much deeper areas of peat. It is all part of the peatland ecosystem and all areas of peat provide a functional, supporting role to other connected areas of peatland. Depth definitions which include some areas as peatland and others as not just serve to exclude ‘shallower’ peatland areas from policy making and land management decisions. Even though such areas continue to be substantial carbon stores, are often vital to the wider ecology and hydrological function of connected deeper peat deposits, and often have their own distinctive biodiversity as part of important areas of transitional habitat.

Unlike many Sites of Special Scientific Interest, Walshaw Moor is also a Special Protection Area & Special Conservation Area, so its blanket bogs should come under the limited protections of the new legislation.

But Defra need to clarify exactly which areas of peat more than 40cm deep on the triple-protected sites, like Walshaw Moor Estate, are covered under these proposals, so local people can easily see where they are.

We’ve looked on Defra’s MAGIC map and can’t see that their areas of blanket bog coincide with the areas of blanket bog in the current Walshaw Moor Estate Catchment Protection Plan. (This may be because the MAGIC map has many overlays. It’ve very complicated and we might be failing to use it properly.)

Land within the protected areas where burning can be licenced because of steepness or being more than 50% scree also needs to be clearly identified for public access.

We don’t want burning on any peat – regardless of its depth or the protected status of its area

All peat should be protected from burning – it’s all vital for restoring biodiversity, storing carbon and raising the water table/reducing flood risk.

The wildfire risk loophole to licence burning is rubbish – rewetting peat should be a priority

Licenses should not be available for burning for reduction of wildfire risks. Instead legislation should aim for peatland rewetting, as this is the most effective means of preventing wildfires. It’s better to invest public funding in measures for that.

Rewetting should be central to Defra’s work with landowners and managers to develop local wildfire control plans.

There is going to be money for this. The government’s new £640m Nature for Climate Fund is earmarked for tree planting and peat restoration. And the Final Report – The Economics of Biodiversity: The Dasgupta Review, that was launched yesterday (2nd February) says,

“Expanding and improving the management of Protected Areas therefore has an essential role to play… Large-scale and widespread investment in Nature-based Solutions would help us to address biodiversity loss and significantly contribute to climate change mitigation and adaptation, not to mention wider economic benefits, including creating jobs. As part of fiscal stimulus packages in the wake of COVID-19, investment in natural capital has the potential for quick returns.”

Source: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/957629/Dasgupta_Review_-_Headline_Messages.pdf

It’s vital that this public money for capital spending on peatland restoration is NOT used on land that will be being burned – that’s not public money for public goods. Landowners should be able to apply for this funding for rewetting, rewilding and non-burning conservation measures. But not for anything that involves burning on any peatland – protected deep peat or not.

How is burning prevention to be monitored and enforced, given that Natural England can’t monitor and enforce existing regulations and protection plans?

Just have a read of our latest struggles to get Natural England to investigate sphagnum burning and apparently unconsented infractructure construction on Walshaw Moor Estate. This struggle has been going on since the summer of 2019, with no Natural England action in sight.

If licences to burn in limited circumstances were issued, there should be a publicly accessible licence database so that the public knows where burning is and isn’t permitted

Since the public are likely to be the only ones monitoring burning, this would be essential.

Why is the Defra Sec of State to issue burning licences, and not Natural England?

Natural England currently issues licenses that allow landowners to do things that would otherwise be illegal, eg Wildlife and Protected Species Mitigation licences.

Centralising licencing with the Sec of State would remove local accountability – Natural England has regional offices that can be contacted by local people. Even if they are too under-resourced to do anything in response to our information, they are at least available for local people to tell them what’s going on in their areas, and to receive information about what land management practices are and aren’t permitted on protected areas.

We do not agree that there is any justification for exemptions that allow burning on protected blanket bog habitats for conservation purposes

So-called restoration burning is not necessary, there are alternative means of restoring blanket bog.  Public funding should be available for landowners to carry out these alternative measures.

Will the new legislation even reduce burning on deep peat? Or is it just spin?

We wonder if the proposed legislation will supplant  Natural England’s Position Statement on Restoration Burning? Or will NE’s requirements for so-called restoration burning still stand, as part of licenses for burning for conservation purposes?

At the moment, Natural England’s Position Statement on Restoration Burning says the agency will only allow restoration burning if other conservation measures have been tried without success for ten years. And it only allows restoration burning for 3 years max.

This seems a stronger restriction than the proposed legislation. The Defra press release says,

“These licences [for burning for conservation purposes] may cover several years.”

And it says nothing about the requirement to have tried other conservation measures for ten years before resorting to burning.

So is it possible that the proposed legislation could well allow more burning on protected areas than is currently permitted by Natural England’s Position Statement on Restoration Burning?

Another point is that Natural England’s Position Statement on Restoration Burning keeps old Heather and Grass Burning Code 2007 loopholes! Ban the Burn’s campaign ask has always been to ban burning and draining on peatland, and to close the burning loopholes in the Heather Regulations.

We think this legislation looks as if it keeps all those burning loopholes – and possibly undoes the tightening of those loopholes that were introduced in Natural England’s Position Statement on Restoration Burning. This really needs looking at.

Update: On Wed 3rd March, Calderdale Council Climate Change Working Party discussed Defra’s legislation on the licensing of burning on peatlands in England.

You can read a report here. Thanks to Hazel Draper’s question to the meeting, Councillors agreed to seek clarity from Defra about their legislation on the licensing of burning on peatlands in England.