A significant victory! – Wuthering Moors 67

Mark 34 Comments

Yesterday  afternoon our lawyers at Leigh Day received a delayed response from Natural England on our Pre-action Protocol letter about Walshaw Moor.  It contained the following important phrases:

‘Natural England accepts that in relation to ground (2), the HRA could have been clearer in certain respects. In particular, Natural England accepts that it is not clear how the conclusion of no adverse effect on integrity at page 65 of the HRA is reached, notwithstanding the text on pages 51-56 that notes among other things “a significant loss when considering the total resource across the site and the importance of this habitat in the national and international context”.‘

‘While this is not a point taken by Dr Avery, Natural England also acknowledges that the approach adopted in Part C of the HRA (screening) is not in accordance with the latest judgment on this topic from the Court of Justice of the European Union (CJEU), Case C-323/17 People Over Wind‘.

‘For those reasons, Natural England agrees to review the HRA more generally and if appropriate in light of that review to withdraw its agreement to the Plan and/or to reflect any different conclusion in any consultation response.‘.

I didn’t see this until mid-evening yesterday and I’ve spent some of today getting my head around this. But, we won!

NE have conceded on one ground – we believe they would have lost in court on more than one ground.

It is unusual for a government agency or department to concede at this stage of any case – the letters before action are often a bit of ritual jousting rather than the full-on conflict.  But in this case, our lawyers had done such a good job, and let’s face it, NE had done such a bad job, that it would not have been in the public interest for NE to fight a case they would most likely lose (that’s my interpretation, anyway). So, we won!

NE have to think again on the Habitats Regulations Assessment that they did for Walshaw Moor and they will know that they must do a better job in future as we are watching them.  NE will also have to inform Calderdale and Pendle Councils that the NE HRA is under review and not to be relied upon.  And NE will need to be scrupulously careful in future agreements with other landowners.  The consequences are significant.

Remember that NE has a regulatory function and we have shown that the regulator, whose job it is to ensure that wildlife laws are respected, itself produced an unlawful regulatory assessment. That is no small matter.

Our letter of response to NE is copied below. And I am perfectly content for NE to publish the whole of their letter to which we replied if they so wish.

I will write more on this tomorrow, despite travelling at the moment (!), but I cannot move on without thanking some people. First our legal team at Leigh Day, particularly Tessa, Carol and Lewis, who are great fun to work with and great professionals too.  Also, the barristers, who can remain anonymous since we are now not going to have them arguing our case in court.  Not for a while anyway.  But also to all of you who supported the crowdfunder – we’ve had a quick return on our investment!  Without public moral and financial support it would be impossible for me to take such a case forward. And also there are a few other people who have helped with advice and support but they had better remain nameless to protect their own interests.

 

 

Sent by email to NE late this afternoon:

Dear Sirs

Walshaw Moor Estate Pre-action Protocol Letter

We write in reply to your Pre-action Protocol response dated 9 May 2018.

Grounds

  1. We note Natural England’s concession that the HRA for the Walshaw Moor Catchment Restoration Plan is unlawful for failing to provide adequate reasons for the conclusions within the Assessment (our Ground 2). However, we do not accept your comments on our other grounds (Grounds 1 & 3-5) and we reserve the right to challenge any fresh decision on those and/or other grounds.

Review

  1. We welcome Natural England’s agreement to review the HRA. As part of this process, and to ensure Natural England has a complete understanding of the extent of the blanket bog and be able properly to assess potential adverse effects, our client believes that the peat depth along the length of the proposed track should now be measured by independent competent experts.

Consultation

  1. We are grateful for your undertaking to review the HRA and to ‘consider inviting further comments on the nature of the proposed track and its impacts’ from our client. We remind you that public participation is an important aspect of the screening and HRA process and, in light of this; we consider it would be to the parties’ mutual interest that proper consultation on this important matter is not merely ‘considered’ by Natural England, but guaranteed.
  2. Our client would be pleased to work with Natural England to ensure the HRA is conducted lawfully and we should therefore be grateful if you would provide some detail on the nature and extent of the proposed consultation, including your proposed timescale and the steps involved. Our client believes it would be beneficial for Natural England also to consult with the RSPB who we believe have an interest in this case and useful expertise in both moorland ecology and the appropriate implementation of the Habitats Regulations.
  3. Our client would like to make clear that these plans, of which there will be numerous over the next two years, are an opportunity for Natural England to improve and ensure protection of designated sites, and not to undermine that protection. An example of this would be for Natural England to seek to remove consent for use of lead shot on all blanket bog SSSIs, as was done in the West Pennines Moor SSSI citation.
  4. In anticipation of proper consultation, we should be grateful if you would explain to us how the management plan addresses the requirements of the EU infraction proceedings which are in respect of reducing the impacts of burning on protected blanket bogs.
  5. Our client also proposes that Natural England publish on its website in a prominent and accessible manner (in the interests of openness and proper public participation) all such management agreements which involve revocation of burning consents as they amount, potentially, to a significant change in practice affecting conservation policy across many protected areas of high conservation value in England, and are a matter of considerable public interest.

Costs

  1. In light of your concession that your HRA for the Catchment Restoration Plan is unlawful on the basis of our Ground 2, we invite you to agree to pay our client’s reasonable costs incurred engaging with you in (extended) pre-action correspondence which has enabled your client to act lawfully, without which that would not have happened.

Conclusion

  1. We should be grateful if you would confirm safe receipt of this letter and acknowledge that you will address the points raised above.

Yours faithfully

Leigh Day

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34 Replies to “A significant victory! – Wuthering Moors 67”

  2. Great news but why hadn’t one of the many conservation NGO’s that have an interest in this sort of thing took NE to court? Isn’t that why we pay our subs and donate to them?

    2. There’s more than one way to skin a cat. Mark does an excellent job of campaigning and that’s the main reason why he left the RSPB. The RSPB, NT and Wildlife Trusts have to work with a whole range of people to get good things for wildlife in lots of areas, the RSPB at Dove Stone are doing great work in demonstrating what good management looks like. This type of campaigning is better suited to individuals like Mark or campaign groups like Greenpeace and Ban the Burn, both of who would happily take your money!

  3. I do hope you get costs. That is to say we. It could perhaps leave a useful starter of other action. I’m sure the ravens should go for JR if needs be, though if sense prevails it may not be needed.

  5. Congratulations to you Mark, and your team. What a brilliant result.

  7. This is Milestone, Mark,well done to you and Leigh Day and everyone else involved,this really gives us hope now .

  9. A well deserved bloody nose to the hierarchy of Natural England and congratulations to the ‘A’ Team:) but so totally unnecessary if they were fit for purpose.

    Call me a skeptic but why didn’t they want it to go to court? Decisions in such cases as this can set precedents which can be useful at later date(s) ….

    Look forward to updates when available.

    1. Circus – good idea. I have made some suggestions but I’ll be out of the country a lot of the relevant time so it won’t be me leading this charge.

  13. Brilliant news well done to all involved. Let’s hope first of many successes

  14. Sorry if I’m not up to speed but can you confirm – the ruling was – against the access road NOT – the actual Grouse shoot ? I’m hoping that ‘Assessment’ is next to ‘Licence’ and then next step ‘BAN’ Let’s just go straight to BAN ?!

    1. “I’m hoping that ‘Assessment’ is next to ‘Licence’ and then next step ‘BAN’ Let’s just go straight to BAN ?!”

      Although clearly related to the campaign to ban riven grouse shooting, this action was not directly part of it and has wider implications. Natural England as a ‘competent authority’ is required to carry out “habitat regulations assessments” (HRAs) before consenting or permitting any works or projects on protected sites (SSSIs, SPAs, SACs) in order to verify that the works will not have significant effects on the designated features of interest. The contention is that Natural England has consented to works on Walshaw Moor, including construction of tracks and burning heather over peat, on the basis of an inadequate and flawed HRA.

      This has importance both at the level of protecting the ecological features for which Walshaw Moor is important but also in terms of the precedents set. A ban on driven grouse shooting may not come for a number of years but in the meantime it is vital that we can trust Natural England to fulfill its statutory obligations to protect wildlife fully and effectively without fear or favour. When and if a ban does come into place this will still be important as threats to protected habitats can come from a variety of directions (and in a variety of different habitats as well our moorlands) and we need our statutory conservation body to asses these threats thoroughly and effectively not to simply wave on through the various individuals and organisations who find the protection of plants and animals inconvenient to their commercial interests.

      The action taken by Mark and his crowdfunder supporters is an important statement to NE and to the government that it cannot expect to get away with shirking its obligations or cutting corners to help business interests either in the context of grouse moors or on any other habitat.

  16. Now that my feet are back on the ground, my thoughts are turning towards what must happen next. Surely there should now be some sort of enquiry as to how such a clearly flawed decision was ever made, why proper procedures were not followed and why it took a threat of legal action to get it stopped. As others have speculated, is this unusually quick capitulation largely due to a desire that the spotlight should not be turned on how NE reached a decision that appears to be in direct conflict with the organisation’s obligations?

  17. You can wrest your case of bubbly open now.
    Well done and thank you.
    More withering arguments for pete’s sake please.

  18. You are right this is a very significant victory Mark. No doubt they conceded because they did not want the regulatory capture of NE and the warping of its role in favour of landowners, exposing in an open court. It’s a case of winning a significant battle not the war. You now have to press on with this case to ensure damaging development on Walshshaw Moor SSSI does not happen. Thats when you declare victory. So please keep up the fundraiser to show the other side we mean business and to stock the coffers ready for when they try and weasel out.

  20. Back in the 1970s this is surely the sort of case FoE would have taken up. Perhaps it is time to reivent some conservation organisations and create Wildlife Litigation Group? Crowdfunding? Mark as CEO?

    1. As far as FoE Scotland is concerned I’m afraid if it’s not about carbon emissions they are very, very unlikely to take an interest. FoES has started a campaign about plastic waste, but let’s face it they had to after David Attenborough made such a splash about it and although FoES is a signed up to the ‘coalition for grouse moor reform’ I only found that out when I looked at the job description for the LACS senior campaigner (grouse moors) position. As an actual FoES member I’ve heard absolutely zilch about their involvement which I fear won’t go beyond having their name associated with it i.e tokenism. I hope FoE EWNI is better, but that wouldn’t be difficult. FoE is definitely not what it used to be, I suspect either North or South of the border and that’s very bad news for broad based environmentalism.

  21. Mark it can’t be said often enough very, very well done indeed! There will be a few now not so smug gits who thought that they were just going to get what they want from a pliant government agency – you’ve ruined their day as much as you’ve made ours. From the sound of it the legal team are a great bunch and I’m sure you’ve had great fun working with them, and they with you. We needed this after a series of capitulations to the grouse moors culminating in the horrendous raven cull. Thanks.

  24. Only just seen this. Absolutely brilliant. Well done to you Mark and everyone involved. Melanie’s birthday today, what a great present you’ve given her. One of the best investments I’ve ever made.
    SNH, are you watching!

  25. That’s one battle won: well done Mark. A great effort.

    Unfortunately the war is never ending.

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