Wuthering Moors 20

We are beginning to shake some of the truth out of Defra over the Walshaw Moor affair.  Below I attach four documents received either by myself or others through Freedom of Information Act and Environmental Information Regulation enquiries.

They are:

1) a letter from the Secretary of the Moorland Association, Martin Gillibrand, to the Defra Minister (and grouse moor owner) Richard Benyon, in September 2011, concerning consents necessary under the Wildlife and Countryside Act and the Birds and Habitats Directives.  The Secretary of the Moorland Association helpfully tells the government Minister that his office should give ‘firm guidance’ on this matter.  The letter also suggests meeting to discuss these and other matters including, apparently, derogations concerning hen harriers.

2) a reply from Richard Benyon less than two weeks later and following the meeting requested by the Moorland Association.  It is interesting to see how quickly the Defra Minister responded to the request of the Moorland Association, the warmth of the reply, and also his promise to do some more work for the Moorland Association and his promise of a ‘substantive’ reply on ‘heather burning, the Fire Index, hen harriers and CROW’.  We do not seem to have been sent that substantive reply, if any such reply were indeed sent.

3) an email from the, then, Chief Executive of Natural England to Richard Benyon setting out the state of play over the Walshaw moor affair in November 2011.  Perhaps this was in response to Ministerial questions prompted by the Moorland Association’s urgings – although, on the other hand, maybe it wasn’t.  The Chief Executive of Natural England wrote that NE felt they had ‘robust evidence to support this prosecution’ and that the judge in the pre-trial hearing questioned whether Walshaw Moor wished to change their plea of ‘not guilty’.  It is interesting that there is no sense of lack of confidence or hesitation in the way that NE were approaching this case in November 2011 given that they reached an agreement with the Walshaw Moor Estate in spring 2012.

4) an email from Edward Bromet, the Chair of the Moorland Association, to Richard Benyon’s private email address, in December 2011, which followed a conversation between the two of them the previous day.  This email refers to a letter from the Minister dated 12 December which we have not yet seen.  Mr Bromet is rather worried about the prospect of burning being limited on blanket bog as, presumably, he fears that this would limit the grouse shooting activities of his members.

Five points from me for now;

1.  The frequency of burning of blanket bogs is an important determinant of the integrity and maintenance of this priority habitat.  It is Defra’s, and Natural England’s, job to make sure that under the EU Habitats Directive that moorland management for red grouse (or anything else) does not prejudice the conservation status of this habitat.  In the Northern Ireland Biodiversity Action Plan for Blanket Bog the plan states ‘Large-scale and too frequent burning reduces the quality of blanket bog by causing a simplification of the vegetation structure and destroying sensitive species, especially Sphagnum bog mosses.’.

2.  The Chief Executive of Natural England clearly regarded the Walshaw Moor affair as being of great importance.

3.  The access of the Moorland Association to the Minister is at a level that many statutory agencies who work for Defra might well envy and is well beyond that of the average environmental NGO.

4.  Watch this space for more documents through this week.

5.  I have made further FoI/EIR requests to Defra following these revelations.

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1.

28 September 2011

Natural England

We had a very useful meeting with  Natural England under the aegis of  Peter Unwin, and tackled the issue of the need for Natural England’s consent for very  minor works.  We had originally sought to resolve this by agreement as to a general consent for these works but the more I think about it the more certain I am  that  consent  is  neither  necessary  nor appropriate,  particularly given th­e assurances that were given to owners when the land was designated that they should  continue  as  hitherto and only significant changes would  require notification/consent.

“Significant”, which is the requirement of the Habitat Directive, seems to have gone by the board and the process is now substantially gold plated, or bound in red tape.

I suspect that it will require firm guidance from your office as to just what is appropriate in the circumstances although we discussed this at  some length I am not sure how the outcome is going to be achieved.

We  also discussed burning  rotations  where  Peter  suggested  that  Natural England should involve the Moorland Association in the internal discussions at an early stage, which would be very welcome, but again I think it may need a rather firmer direction.

You mentioned a little time ago that you might  be able to find a slot in your diary for a brief meeting when you’re up north for the Party Conference, and if that is still a possibility Edward Bromet and I would very much like to follow that through with you.  I would also welcome a chance to update you on – the position in the hen harrier discussions through the Environment Council, and the possibility of obtaining derogations to cover the entire proposed process.

Martin Gillibrand

Secretary, Moorland Association

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2.

10  October 2011

From  Phillips, Helen (NE)

To  Richard Benyon

Cc  Unwin, Peter (ERG); Christensen, Poul (NE)

Sent  09 November 2011 23:52

Richard

Further to our meeting yesterday, a summary of current position: Walshaw Moor Estate Limited There are two regulatory proceedings currently being dealt with in relation to Walsaw (sic) Moor Estate – criminal proceedings for illegal works on the Moor; and an appeal by the Estate against the modification of a consent. Whilst the two actions relate to the same Moor and Estate there is in fact no overlap between the issues dealt with in either set of proceedings.

(i) The Prosecution

Natural England initiated prosecution proceedings against the Estate for carrying out damaging activities on the SSSI without consent which is an offence contrary to the provisions of the Wildlife and Countryside Act 1981.  [Sentence blocked out here by Defra] In deciding to prosecute Natural England took account of both its own Enforcement Policy and the Code for Crown Prosecutors and was satisfied that this was a matter that was suitable for prosecution.There are a number of reasons for this:

(i) the scale of the damage and the sheer number of breaches;

(ii) the Estate has a previous conviction for similar offences;

and

(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.

(ii) The Appeal against a Notice of Modification

The inquiry relates to the modification of a consent issued in 1995 which referred to the maintenance of existing infrastructure. The dispute as such is over the burning regimes being used by the Estate on sensitive protected areas. Put simply, it is Natural England’s contention that the Estate is not maintaining existing infrastructure but is in fact carrying out a burning regime far different to that previously maintained and that this new regime is damaging protected habitats.

Natural England served the Notice of Modification  of the consent in March 2010. There then followed a period of negotiation  whilst both sides tried to reach a common position that would have allowed the Estate to undertake certain activities as part of an HLS agreement. These negotiations were unsuccessful and the Estate appealed against the Modification in December 2010. It is worth noting the Modification does not take effect whilst the appeal is in progress and if the Modification is upheld by the Inspector the Estate will be entitled to statutory compensation for any loss suffered. The appeal will be dealt with by way of an inquiry which is listed to take place for 3 weeks commencing January 2012.

Both parties are in the process of preparing their evidence for the appeal proceedings.

For your information only:

It is also worth noting that the Estate has made approaches to Natural England with a proposal to settle both the criminal and the appeal proceedings. Their initial proposal was not acceptable to us and we have made a counter-offer. Nevertheless we are mindful of the cost to the public purse of pursuing these proceedings and the risks to both parties if a conclusion is reached that is unsatisfactory to either.  We have therefore organised an internal review of Natural England’s case to understand better the risks and to see whether there may be scope to reach a resolution that is acceptable to the Estate whilst ensuring that we have met our statutory duties and that this sensitive environment continues to be protected.