Wuthering Moors 23

Natural England spent over £1m of your money pursuing legal action against the Walshaw Moor Estate for alleged breaches (but a mere 43 of them) of the Wildlife and Countryside Act and the Habitats Directive.  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 refused to disclose the witness statement given by their director, Andrew Wood, in these legal proceedings even though, as I understand it (and NE has not at any stage denied this) that witness statement was made in open court and as part of Mr Wood’s job (for which you and I as taxpayers, pay him).  It is my belief that that witness statement would spell out in some detail the gravity of the alleged offences and their environmental importance.

I repeated my request to NE to reveal that document as, as I understand it, if I, or you, had wandered into the court room at the time that Mr Wood was making his statement then I, or you, could have told anyone we liked about it.  This was a public statement, from a public servant about a matter of public interest.  And yet NE will not disclose this document to me or to the couple of dozen or so of you who have also requested to see it under the Freedom of Information Act and/or Environmental Information Regulations.

This is a shocking, truly shocking, state of affairs.  It reflects very badly on the transparency of Defra and its agencies that this information has not been forthcoming.  It can only raise alarm bells and suspicions that there must be some very embarrassing information in Mr Wood’s witness statement.  This might be true as people who might know what they are talking about have described this statement as ‘dynamite’ – but I’d much rather see it whether it is dynamite or not.

Is this just stubbornness? Well, yes, I am occasionally stubborn, but stubbornness in a good cause is determination by any other name.

Is this a good cause?  I think so, because the management of the English uplands is a matter of concern to me and to many others.  Much public money goes into the uplands, and goes to estates such as the Walshaw Moor Estate, and that public money is spent to protect and enhance public goods such as landscape, clean water and wildlife so there is a real public interest in this type of event where an estate is at one moment held to have perhaps committed 43 offences and another moment all that is put behind us and legal proceedings stopped.  We know that as part of the settlement the Estate has not been required to remove any of the existing structures.

Whatever the thinking behind NE’s volte face it may well have wide-ranging implications for the management of other similar designated sites.

Also, the handling of this affair by NE and by Defra does not meet the standards of openness that we should expect from public bodies.  The long delays and scant disclosures are not what we should expect of public bodies.  They can also be seen as being obstructive and seeking to make it difficult for further legal action to be pursued by interested parties.

Therefore, I have written to my MP, Louise Mensch, asking her to ask Defra to instruct Natural England to make Andrew Wood’s witness statement available, and to make a full statement about the Walshaw Moor affair.  The text of my email to Ms Mensch is attached below and I would suggest that if you feel that the future management of the English uplands and/or transparency of public policy and decision-making are important matters then you write in similar ways to your MP.  Thank you.


Dear Ms Mensch

You and I are unlikely to agree about much politically but [passage omitted].

I am writing to ask you to write to Richard Benyon at Defra and ask him to instruct Natural England to make publicly available the witness statement that NE director, Andrew Wood, made at a legal case earlier this year concerning 43 alleged breaches of the Wildlife and Countryside Act and EU Habitats Directive.  I have asked to see this witness statement under the Freedom of Information Act and the Environmental Information Regulations and been refused twice by NE.  Many others have also asked to see this document and also been refused.

The witness statement was made by Mr Wood as part of his work for Natural England (a public body) and given (as I understand it) in open court.  If I had wandered in off the streets that day I would know what he said and would be able to talk openly about it.  Not to disclose this information is, in my opinion, shockingly obstructive behaviour by a public body.  I hope you agree, and I hope that your influence to ask for disclosure as an MP will be greater than mine as a taxpayer.

The importance of the witness statement is that it set out (I believe) the reasons why NE were taking legal action against the Walshaw Moor Estate and the seriousness of the alleged environmental damage caused by the estate to the moorland which is designated for its wildlife interest.  The case presumably has importance for NE’s treatment of other upland areas designated under environmental legislation.

NE dropped the legal case against the Walshaw Moor Estate and have not offered a full explanation of why they dropped it.  The legal case cost the taxpayers of Corby and elsewhere over £1m.

I am trying to get to the bottom of why the case was dropped after so much of my money went into preparing it and fighting it to a certain extent.  Mr Wood’s witness statement is a key part of the explanation.

I am also concerned that Defra and NE have not responded properly to my FoI and EIR requests.  In particular, Defra’s responses have been slow, uninformative and drafted by one of the staff closely involved in this case (which seems poor practice to me).  Natural England have hidden behind Regulation 12(5)(b) of the Environmental Information Regulations as their reason for non-disclosure. They say that as the legal proceedings were not pursued then the witness statement remains an internal document. I believe, that the witness statement was made in open court and therefore that explanation is a weak justification for being obstructive.  In any case, the dropping of the legal case was very strange in itself and a public body should not use its strange behaviour in one area to justify its strange behaviour elsewhere.  If the case had not been strangely dropped then the witness statement would be publicly available right now, I assume.  By taking undue time to respond to these requests and failing to be open in their responses Defra and NE are making more difficult the task of others who may wish to pursue these legal matters independently.  For example, the time period for judicial review has now passed but other legal options remain.  It looks as though Defra and NE are trying to cover their tracks and make legal action, which might embarrass them, more difficult. 

If you wish to know more about this matter then go to my blog www.markavery.info/blog/ and type ‘wuthering’ into the search engine and you will find 23 blogs about this matter including my FoI/EIR requests and Defra’s and NE’s inadequate responses to them.  Or i am happy to brief you further on this matter but i would ask you please not to delay writing to Defra.

In conclusion, please write, on my behalf, to Richard Benyon at Defra and ask him to instruct NE to make Andrew Wood’s witness statement available publicly as a matter of urgency.  There is no reason why this should take Defra and NE any more than a week after receipt of your letter and please ask them to comply quickly.  Please also ask him to put on the Defra website a full explanation for the mysterious and suspicious behaviour of Natural England in dropping their legal case.

Yours sincerely

Dr Mark Avery




19 Replies to “Wuthering Moors 23”

  1. Copy and paste the letter cutting out ‘Corby’ and replacing it with where you live.
    Cut out ‘my’ when referring to blog and add the
    And don’t forget to change the name at the bottom!!

  2. In late June 2012, Natural England released an invitation (see here http://www.naturalengland.org.uk/about_us/news/2012/200612a.aspx) to comment on its delivery of upland management. Interestingly, the work is also looking to define a set of principles.

    For those with competence in understanding the issues, it would be well worth inputting in to this constructively; in addition to letters and e-mails to MPs condemning Natural England’s behaviour over the Walshaw Estate affair.

  3. Is it possible to get a transcript from Leeds court containing Andrew Woods statement as a FOI act request from the court?

    1. This would be my next idea too. If the case was held in a public court I would have thought there ought to be a record of it in the public domain. It may require a visit to Leeds Court – if the information is available there.
      I too think this case is very important – its important for this particular incident but its also important because we seem to have drifted into a situation where an elected government has deemed itself not to be accountable to either the electorate and/or the taxpayer for its decisions.

  4. Presumably the case was prepared with the support of the CPS so there is a possibility that they hold a copy of the statement in their files?

  5. Mark,you know I have high regard for your determination and if I had to write a C V for you that would certainly be part of it.You deserve a answer for your persistence.Do not mean in a derogatory way but it always makes me smile especially where you say to Ms Mensch that if she wants to know more go to your 23 blogs on subject,hope she has a spare 10 minutes.

  6. I too had the” rebuttal” email from Natural England and they took their time replying.

    Mark, I agree with all you say, but we need to be clear about whether or not this witness statement ever did get read or presented in a public forum as NE say in their letter:-

    “those proceedings were settled ahead of any hearing and therefore the statement never became a public document and was never considered in open court.”

    They mentioned that I must exhaust their complaints procedure before I can take the matter to the Information Commissioner so I have asked for them to conduct an internal review – this can take a maximum of 40 days and no doubt it will!


    1. Tony – thank you. I am told that this witness statement was presented in public but since I wasn’t there then I cannot be sure.

      Read the NE words carefully – they don’t say that it wasn’t presented in public they just say that the case was settled and therefore the statement never became ‘a public document’. Those two things are not quite the same.

      And, in any case, this is just splitting hairs. If you prepared a speech to present in public (at the taxpayers’ expense) and the event was rained off would you be justified as a public servant in withholding that information? On what grounds exactly? It is difficult to escape the suspicion that the reason for non-disclosure is that disclosure might be inconvenient or embarrassing for NE rather than that it is not in the public interest.

      And, withholding of NE’s information prejudices others’ rights to take legal action in this case, so far from it being in the interests of justice to withhold this information it is in the interests of justice to disclose it.

      That’s my view anyway.

  7. I can like Dennis only commend your persistence Mark. I think this document is vital to our understanding of the case and the NE position. It is should be in the public domain as court procedings are conducted in our name. Leep up the persistence.

  8. I see too that the Walshaw Moor Estate has a previous conviction, being fined £33,000 in 2005 in a case brought by English Nature as it was then (sorry if this has already been mentioned). They were also required to carry out restoration work. Do we know if this was ever done?

  9. Drips of water falling repeatedly onto a rock can eventually carve out a huge cavern. Whether it is stubbornness or determination it is worth persisiting in the face of Defra/NE’s obduracy and encouraging as many others to do so as possible. Eventually the truth may emerge and, if nothing else, it ensures that Ministers must realise that the management of the moorlands cannot simply be decided at cosy private dinners as whatever suits a few wealthy grouse shooters but needs to be open and take proper account of all of the other interests and values in the moors including wildlife, water catchment protection, carbon storage, open access and so on.

  10. Hi
    I’ve had a FoI request refusal from Natural England about the witness statement too and they say, twice, that one of the reasons for refusing to disclose it is that Natural England thinks there’s “a real prospect of future litigation.” They also say, in that context, “The information in the statement could be relied upon in any future legal challenges and Natural England needs to be able to defend itself.” It seems quite interesting that they’re saying that the case might come back to court.

  11. Mark, hiding behind section 44 can be frustrating for everyone involved whilst attempting to get access to public information. Have you thought of taking a single point of the NE case against Walshaw Moor Estate and issue a private prosecution. By doing this full disclosure of documents would then be an legal obligation. Just a thought.

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