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:
Walshaw Moor Estate Pre-action Protocol Letter
We write in reply to your Pre-action Protocol response dated 9 May 2018.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- We should be grateful if you would confirm safe receipt of this letter and acknowledge that you will address the points raised above.