Wuthering Moors 16

Here is the full response which I have received from Natural England in response to my request for information about the ‘Walshaw Moor Affair’ (see 15 previous blogs, all tagged with ‘wuthering’, the first of which is listed here).

I will comment on this later in the week.  But there are some very interesting passages here – if this is the type of thing you find interesting!

 

18 May 2012

Dear Mr Avery

Access to information request – Request no 1494

Thank you for your two requests for information on Walshaw Moor Estate, which we received on 2 April 2012. I’ve been asked to respond on behalf of Dave Webster, Interim CEO Natural England. Your requests have been carefully considered under the Environmental Information Regulations 2004 (the Regulations). Details of the information you have requested is set out in bold below followed by our response.

You have asked for:

1. a copy of the Appropriate Assessment or drafts of the same, that went with the first modification of consent notice i.e. the notice that the Inquiry was all about.
Natural England does not hold any information in relation to this question; accordingly Regulation 12(4)(a) of the Regulations – information not held, applies.

2. a copy of the Appropriate Assessment for the Regulation 23 notice and the second notice of modification of consent sent out in December 2011 (or drafts of the same).
Natural England does not hold any information in relation to this question; accordingly Regulation 12(4)(a) of the Regulations – information not held, applies.

3. a copy of the Appropriate Assessment for the consent dated 1 March 2012 following the settlement.
Please fine attached the appropriate assessment.

4. a copy of Andrew Wood’s witness statement for the Judicial Review which was referred to during the public inquiry and which states NE’s views on burning of blanket bog.
Andrew Wood’s witness statement was produced for judicial review proceedings which were not pursued therefore this statement was not put into the public domain and is still classified as an internal document. Natural England is withholding this document under the exception set out in Regulation 12(5)(b) of the Regulations.

Regulation 12(5)(b) states:
“…a public authority may refuse to disclose information to the extent that its disclosure would adversely affect…
(b) the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature;”
The Information Commissioner’s Office has determined that parties involved in judicial proceedings have the expectation that such information will only be disclosed under the established court systems and procedures and that disclosure under the Regulations may serve to undermine general confidence in the judicial or inquiry system. This provision may apply even where the proceedings have been completed. As stated above, Andrew Wood’s witness statement was produced for the purposes of legal proceedings.
We have considered the public interest test and whether it would be in the general public interest to disclose the witness statement in order to show transparency and accountability in our decision making processes. These arguments have to be weighed against the clear public interest in preserving public confidence in the judicial system where the expectation is that disclosure of such information is regulated by that system. We have also looked at the particular circumstances of this case and the fact that Natural England is still in negotiations with the Estate in relation to an HLS agreement. Whilst Natural England strives to be an open and transparent organisation, in this case we believe that public interest test supports the withholding of this information.

5. the HLS agreement for Walshaw Moor.
I can confirm that an Entry Level and Higher Level Environmental Stewardship agreement has been signed. The start date of the agreement is 1 June 2012 and the agreement documents will be available on request from this date.

6. the names of the NE staff who drafted the Appropriate Assessments.
The Appropriate Assessment was drafted by a Lead Adviser and Senior Specialist in the Regulation function with support from a Principal Specialist from Legal Services. The Appropriate Assessment was contributed to, overseen and approved by Tim Hill, Director of Evidence and Chief Scientist and Janette Ward, Director of Regulation.
In your questions 7-10 which we have responded to below, the level of communication with Defra on this matter may appear low. The reason for this is twofold (i) Natural England is the delivery body with responsibility for protection of upland habitats; and (ii) Defra did not try to seek detailed information from Natural England as they were mindful of the fact that they were the appellate body in the event of a dispute about management of the land. It is our understanding that this is the reason that Defra have always been at pains to maintain an appropriate distance from the proceedings and to avoid becoming involved or influencing Natural England’s actions.

7. since September 2011, how many meetings between NE and Defra have in part or in whole concerned the management of the Walshaw Moor Estate?
There have been 3 meetings between Natural England and Defra where the management of Walshaw Moor Estate was raised.

8. since September 2011, how many telephone conversations between NE and Defra have in part or in whole concerned the management of the Walshaw Moor Estate?
Natural England has on record only one telephone conversation where the management of Walshaw Moor Estate was discussed.

9. since September 2011, how many emails between NE and Defra have in part or in whole concerned the management of the Walshaw Moor Estate?
There have been 10 emails between Natural England and Defra since September 2011 concerning the management of the Walshaw Moor Estate.

10. since September 2011, how many letters between NE and Defra have in part or in whole concerned the management of the Walshaw Moor Estate?
There have been no letters between Natural England and Defra which have in part or in whole concerned the management of Walshaw Moor Estate since September 2011. Natural England does not hold any information in relation to this question; accordingly Regulation 12(4)(a) of the Regulations – information not held, applies.

11. for all of the above meetings, telephone conversations, letters or emails, have Defra given NE guidance as to how this case should be settled and what was the nature of that advice?
I can confirm that DEFRA did not give Natural England any advice on how this case should be settled accordingly Regulation 12(4)(a) of the Regulations – information not held, applies.

12. in particular, did you meet [Robin Mortimer] in around February 2012 and gain the impression that NE’s relationship with land managers in the English uplands was seen by Defra as being sufficiently poor that this might influence NE’s future position after the upcoming triennial review? Please give an account of that meeting if it did indeed take place.
There were 3 meetings in or around February 2012 with Robin Mortimer. In neither case did Natural England officers gain the impression that its relationship with land managers in the English uplands was seen by Defra as being sufficiently poor that it might influence Natural England’s future position in relation to the upcoming triennial review.

13. what prosecutions were being taken by Natural England concerning damage to protected habitats at Walshaw Moor, what were the details of these cases and why were they dropped? Has any damage to the moorland habitat, if such there were, been put right or is there a plan for this being done?
Criminal proceedings were issued 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 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.

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.

Natural England’s dispute with the Walshaw Moor Estate has been resolved from a regulatory perspective on the basis of the new Notice and Consent a copy of which was published on our website on 23 March 2012. The criminal proceedings were withdrawn as part of the overall settlement package the aim of which was to secure the best possible environmental outcome for the future management of the Moor. As part of the settlement Walshaw Moor Estate have not been required to remove any existing infrastructure however Natural England will be working with the Estate to secure the long term protection of the protected habitats for which the site has been designated.

Please note that the information we have supplied to you is subject to copyright protection under the Copyright Designs and Patents Act 1988. You may re-use this information (not including logos) free of charge in any format or medium, for the purposes of research for non-commercial purposes, private study, criticism, review and news reporting. You must re-use it accurately and not in a misleading context. The material must be acknowledged as Natural England copyright and you must give the title of the source document/publication. However, if you wish to re-use all or part of this information for commercial purposes, including publishing you will need to apply for a licence. Applications can be sent to Enquiry Service, Natural England, Block B, Government Buildings, Whittington Road, WORCESTER, WR5 2LQ.

This information may also contain third party copyrighted martial and you will need to obtain permission from the copyright holders concerned before you re-use it.

If you have any queries about this letter, please contact me. As you may be aware, under the legislation should you have any concerns with the service you have received in relation to your requests and wish to make a complaint or request a review of our decision, please contact me and I’ll arrange for a colleague to conduct an internal review. Under Regulation 11(2) this needs to be done no later than 40 working days after the date of this letter.

If you are not content with the outcome of your complaint, you may apply directly to the Information Commissioner for a decision. Generally, the Commissioner cannot make a decision unless you have exhausted the complaints procedure provided by Natural England. The Information Commissioner can be contacted at: The Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF. Telephone: 01625 545 700, www.ico.gov.uk.

Yours sincerely

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6 Replies to “Wuthering Moors 16”

  1. It would be interesting to read the Appropriate Assessment for the Walshaw Moor Estate (WME) and compare it and its conclusions with a plan or project that has been drafted/ submitted for planning approval that is close to a comparable European protected site, to consider whether there are any significant differences between the two.

    For example, if a project was submitted as a planning application close to a European protected site of comparable habitat and qualifying species interest to the WME, an Appropriate Assessment could reasonably be expected to determine if the project would likely have a significant effect on the site's integrity. Whilst the competent authority in this scenario would be the Local Planning Authority (LPA), in my experience, there would likely be considerable weight given to Natural England's views - by the LPA, the planning inspector at any Public Inquiry and if it came to Judicial Review, the courts.

    Obviously, having not seen the Appropriate Assessment, I can't comment on the potential issues that could arise out of it but (and this is a [big] but), if the Appropriate Assessment for the WME concludes that the proposed management won't have a significant effect on the site or its integrity, it could strengthen a developer's argument that their project (e.g. more than 10km away) would have even less damaging effects; and thus could even argue that a Appropriate Assessment isn't necessary and they would be paying a not insubstantial fee to a consultant for superflous documentation. It would certainly appear inconsistent and from an untrained eye, burning a European protected site is more damaging than a development some distance away.

    Mark - I'd be interested in your views.

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