Wuthering Moors 35 – response to Defra’s case

Here are a few points on Defra’s response to the RSPB’s complaint to the EU Commission in the Walshaw Moor affair (see blog of 12 noon today).

1. Five tracks, five car parks, two ponds dug out of the peat, earthworks?

2.  Some of the alleged damage may not ultimately be restored.

3. NE has authorised burning of blanket bogs.

4. All the burning permissions relate to grouse moors – how odd that other land managers don’t apparently need to burn heather moors to maintain the habitat?

5.  The burning consents have been made for 25 years.

6.  Public money, mine and yours, is being paid to grouse moor managers to compensate them for stopping activities that were damaging EU-protected habitats.

7. Legal action was being taken against Walshaw Moor Estate Limited for 30 cases of moor gripping (digging drainage channels) but now they are being paid through an HLS scheme for blocking moor grips.  One wonders whether or not they are the same grips?

 

Are you happy with all this? I think it stinks.

 

 

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18 Replies to “Wuthering Moors 35 – response to Defra’s case”

  1. 'WMEL was in possession of a 1995 consent from English Nature to arguably pursue unrestricted burning, grazing and other management activities on the site in perpetuity.'

    So, the truth is out - reading between the lines, the estate had an open ended written consent, but NE tried to shift the goalposts by unilaterally amending that consent in 2010.

    The estate never broke the law as alleged as the consent gave them permission to do everything that they were accused of, but NE went off on a half cocked prosecution that fell apart when the detail of the 1995 consent came to light, and the lawyers confirmed that NE had no power to vary the written consent they has issued in 95.

    So, in the words of Bernard Ingham

    Many journalists have fallen for the conspiracy theory of government. I do assure you that they would produce more accurate work if they adhered to the cock-up theory.

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    1. kie - Thank you for your comment. I thought that your previous advice was not to read between the lines?

      Awful split infinitive though it is, the key phrase is 'to arguably pursue'. The world is arguably flat - though it isn't actually flat. This is arguably the greenest government ever, though it isn't actually very green at all.

      See WM21 (https://markavery.info/2012/07/10/wuthering-moors-21/) which makes it clear that NE were perfectly clear about the basis on which WMEL might believe that their actions were justified.

      It may be that it was an almighty cock-up by NE that cost the tax-payer millions of pounds - I'd prefer that to many alternative explanations. It would still be something that should not be covered up though. It would still fall into the 'government is not being open because it is embarrassing' category - wouldn't it?

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      1. I said don't read anything into the specific wording of FOI requests - this isn't one, and we're reading between the lines of a long history of events.

        I see nothing inconsistent in WM21 - they were clearly of the opinion they had the power to vary the consent unilaterally, and took out the prosecution on the basis of that belief - I believe the estate challenged them, and the legal advice was clearly that the Estates case was strong enough that NE decided not to pursue the criminal conviction (<50% chance of conviction?)

        There were clearly several cock ups - whoever gave the perpetual consent in '95, whoever advised them they could vary it, and whoever decided that they had grounds to prosecute.

        If we look at the whole thing the other way - we have an estate that has a written consent, and NE come in and rather than trying to find a compromise, start throwing their weight around - NE demand that they change their burning regime despite having no power to do so, they tell the estate 'oh, well, I don't care about the consent letter we've already given you, we're moving the gateposts and if you don't comply we'll prosecute you

        and I'm sorry to say, they had a certain organisation vocally egging them on to enforce their powers and to prosecute, all the way there!

        Wouldn't it have been better if both NE and the RSPB had sought to build a consensus and compromise from the outset? they might have got what they eventually settled for without all the wasted money and bad feeling!

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        1. kie - I don't know what part the RSPB played in this - you sound as though you think you do, but maybe I am reading between the lines (something that only you seem to be allowed to do).

          If the original consent did not meet the requirements of the Habitats Directive and/or the Birds Directive and/or the Wildlife and Countryside Act then it was certainly NE's job to renegotiate things to make sure that the law was enforced. They may, or may not, have chosen the right, or wrong, way to do this - I don't know, but I'd like to know, because it is costing me (and you) millions of pounds in legal costs and now A-E payments.

          You suggest looking at it from the estate's point of view - I can see your point. I prefer to look at it from the point of view of a blanket bog, or a hen harrier, or a dunlin, or a Sphagnum moss because they don't have lawyers to speak for them. They are supposed to be protected on Walshaw Moor and many other upland sites through domestic and EU legislation. Burning of blanket bog doesn't sound like very good protection to me.

          How many upland estates are carrying out activities which will damage the wildlife interest of these 'protected' sites? And what is Defra and NE doing about it if there are some or many?

          Do tracks suitable for vehicles on moorland require planning permission, by the way? I've heard of a few that are cropping up these days.

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  2. I think it stinks too. The civil servants may think it is an honourable compromise or the best that could be got. I hope the Commission don't agree.

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  3. Is the management agreement to be made publicly available given that it concerns the use of public money? And who will be checking if WMEL stick to it?

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  4. The key point about the statement above is "arguably". The 1995 consent was "arguably" not as open as portrayed by NE to Europe. Mark, you should ask for a copy of it. It was loosely worded by todays standards but was based upon the management at the time the letter was written. When the estate changed hands that management increased significantly so there were grounds for NE taking action. Why they actually bottled it will no doubt remain a mystery but may well have been a combination of ministerial and defra pressure on a bunch of NE execs who lack any conviction when it comes to protecting the environment.

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    1. Jack - that's very interesting, thank you.

      And I would have posted your comment quicker if i hadn't been replying to 'kie' pointing out the importance of the word 'arguably' - so, thank you for your patience and support.

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      1. I'd suggest that 'arguably' means "we don't like it, but our lawyers were not willing to take it to the ultimate test"

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  5. Mark as I understand it you need planning consent for a sporting access track but not for an agricultural track. Thus if there are livestock on the moor you can get away with a track w/o planning consent, no livestock you need consent. This whole thing stinks to high heaven from all points of view and it seems to me at least to have driven a coach and horses through any regard for nature conservation. how many other estates are getting away with this? Some I know of a lot more I would suggest. Lots of heads need to roll, and what part is played by the MA or CA and what is the attitude of BASC and GWCT I wonder? We need a look at the prior documentation of all consents and communication between NE and the estate to put it into context. What ever happened to nature conservation in all this as it seems almost to have been totally disregarded at all stages.

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    1. Nature conservation, mmmh perhaps it's regarded as that much referenced inconvenient 'red-tape' these days that gets in the way of development or major landowner interests?

      NE have been gagged, you only have to read Mark's guest blog of 17 January https://markavery.info/2013/01/17/guest-blog-a-muzzled-watchdog-toothless-terrier-helen-kirk/ to see that damage to a Natura 2000 sites does not matter these days. Action by Defra agencies (NE & RPA) is still awaited in respect of this case.

      How many more case files can we all contribute to the catalogue of failures? Yet survive the Triennial Review they did. Please excuse late night tiredness and a flippant remark but can we apply trade description laws to the ever increasing failure of lapdogs to deliver what it says on their metaphoric tins? The protection and conservation duty and responsibility seems to be slipping and replaced by access and engagement, with impending open season across all NNRs, see http://you.38degrees.org.uk/petitions/stop-rethink-national-nature-reserves-as-open-access

      In terms of Walshaw, I really do wish all involved in it the very best of luck in actioning the various breaches of compliance and ensuring that the appropriate people are properly held to account and an example made of all aspects of the sad saga.

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    2. The normal permitted development rights are suspended within Natura sites, all engineering works will require planning consent.

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  6. Two interesting PDFs to download explaining NE's Tracks policy etc

    http://www.northpennines.org.uk/Lists/DocumentLibrary/Attachments/131//NaturalEnglandMoorlandTracksConservationPolicy.pdf

    http://www.northpennines.org.uk/Lists/DocumentLibrary/Attachments/134//NPAPTracksInAProtectedLandscape.pdf

    We live at over 1,500' - 100 yards from the grouse moor – the presence of 'tracks' over moors for the locals is sometimes the difference between getting home - getting 'bogged' down or being unable to 'get' whatsoever One interesting 'snowy' evening I came across two police Land Rovers in the same ditch – the second came out to rescue the first! The annual life cycle of a moor is not necessarily as simple as it appears it should be with all these sunny photo shots..

    Incidentally I prefer the traditional stone butts – some of which are absolutely gorgeous with stonework as good as you'll get – 'but' you don't want to fall downa butt in the snow and not get up again - the same goes for 'holes' created by coal mining! It's a different world in the real winter.
    The most important factor in butt location and design is 'safety' whilst shooting.

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  7. If it helps:-

    http://www.northpennines.org.uk/Pages/MoorlandTracks.aspx

    Seminar Presentations
    1) Chris Woodley – Stewart, North Pennines AONB Partnership
    NPAPTracksInAProtectedLandscape.pdf (17 pages, 1125kb)

    2) Nick Mason, North Pennines AONB Partnership
    NPAPCaseStudies.pdf (16 pages, 1916kb)

    3) Paul Illingworth, Northumbrian Water Ltd
    NWLMoorlandTracksWaterResourceImpacts.pdf (16 pages, 353kb)

    4) John Barrett, Natural England
    NaturalEnglandMoorlandTracksImpactsandIssue.pdf (24 pages, 1995kb)

    5) Anne Armitstead, Natural England
    NaturalEnglandMoorlandTracksConservationPolicy.pdf (16 pages, 837kb)

    6) Andrew Coupar, Scottish Natural Heritage
    SNHScottishTrackIssues.pdf (45 pages, 929kb)

    7) Philip Lewis, England and Lyle, Chartered Town Planners
    UplandTracks.pdf (22 pages, 567kb)

    8) Richard Lindsay, University of East London
    Tracks_cience.pdf (52 pages, 2949kb)

    9) Martin Gillibrand, Moorland Association
    MATracks.pdf (3 pages, 20kb)

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    1. Interesting reading Peter - thanks.

      Richard Lindsey's presentation is particularly good at highlighting the issues with constructing tracks on peat.

      http://www.northpennines.org.uk/Lists/DocumentLibrary/Attachments/141//Tracks_cience.pdf

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