Tim writes: Common Sandpipers are quite unusual among British waders as they are almost entirely summer breeding visitors from sub-Saharan Africa. Most of Britain’s wading birds are winter visitors although quite a few also breed in Britain. The “kitty-needy-kitty-needy” flight call of the Common Sandpiper heralds the arrival of spring close to where I live in the Pennines. Their stiff-winged flight across the water’s surface consists of rapid pulses of shivering wingbeats interspersed with glides. They also have a habit of bobbing their long tail, which is why this individual appears to have such a jaunty gait. About 15 thousand pairs nest in Britain but they are largely restricted to the uplands, but they are commonly seen on migration through the lowlands. Its scientific name Actitis hypoleucos translates as coast-dweller that is white below. I photographed this next to a reservoir in the Peak District on 22nd April 2018.
Paul is having a break from producing cartoons to coincide with my ‘blog sabbatical’.
He seems to be working on a book.
It’s been good to have him here for so many weeks using this audience as a testing ground.
And I now have this image in my office:
How did NE get into the position of allowing an unlawful Habitats Regualtions Assessment to be done? In this blog I will explain what I think has happened. But let me repeat that it is a serious matter when the government nature conservation agency produces an unlawful Habitats Regulations Assessment – Quis custodiet ipsos custodes? Well, it appears that you and I have to do it. And that’s not right.
Let’s work backwards to uncover the political contex in which an unlawful HRA emerged from Natural England. Much of the following seems to be about a track being built but is actually about burning consents, saving face, money and some quite big politics.
Why was the HRA unlawful?: we believe that it was unlawful on several grounds and NE have conceded on one (but we believe that we would have won at least some of the other grounds in court had we got there). NE conceded on the grounds that they didn’t explain their decision well enough (in layman’s terms).
Why didn’t NE explain their decision well enough?: maybe that will become clear when NE re-do their HRA, but I believe that they couldn’t explain their decision because it was a wrongly-argued and irrational decision. NE would disagree, but that’s what I think. I think that on the basis that what appears to be an earlier version of the HRA, obtained through a Freedom of Information Act request, states that there would be damage caused by the building of a track across blanket bog, but that this was changed to state that there would not be damage, then it is clear that NE was keen to get past this tricky issue and perhaps somehow, someone in NE cut corners or instructed people to cut corners. Or maybe it was just a massive error. Maybe we’ll find out when a new HRA is produced. It has to be said that NE’s apparent insouciance over consenting a 5km track going through a protected area with habitats of high conservation importance is difficult to take. It’s even more difficult to understand when one realises that it seems as though NE had turned down a very, very similar track a few years ago on this site, on this very route. It wasn’t OK then, but it is OK, apparently, now. How odd! It’s almost as though NE is desperate for the track to be built!
Why might NE be keen to consent the building of a damaging track through high priority protected habitats?: well, we can see that someone is very keen on this track because the agreement signed between NE and Walshaw Moor Estate specifically says that nothing in the agreement takes force until the track gets planning permission. That is astounding! Someone is very, very keen on that track being built. I guess it’s the estate, don’t you?
Why is Walshaw Moor Estate so keen on a track being built? I don’t really know, but it seems that they are. The history of the site shows that they are keen on tracks. Maybe the tracks will make grouse shooting easier? I don’t know.
Surely NE is the regulator and ought to be cracking the whip? Why are they bending over backwards to consent a damaging track across protected habitat?: well, I think I do know the answer to that one. Natural England want to revoke the burning consents that apply to Walshaw Moor and 100+ other grouse moors in the north of England and the means of doing this are by agreements where the estates are persuaded to give up their existing consents – so they have to be jollied along. Handing out unlawful consents for new infrastructure might get the grouse moor owners into a good enough mood to sign an agreement on burning.
Why can’t the burning consents be revoked anyway, without agreement?: they can. But the existing consents run for a couple of decades or so and the grouse moor owners don’t want to give up their rights to burn even though the burning rights they have damage protected habitats for wildlife, because they care most about Red Grouse numbers and not wildlife on the moors. So what is the likelihood that a bunch of grouse moor owners would take legal action against NE if NE withdrew existing burning consents? Very high! I think NE and Defra should man-up and withdraw those consents anyway. But if they did then the grouse moor managers would say that they had invested their energies and money into building up their businesses (the business of shooting wild Red Grouse for fun and profit) on the basis of consents that were given to them by NE and government and they ought to be compensated for losses. They’d argue that the losses would be enormous. NE and Defra have run away from this fight – I’d love to know why but I can only speculate.
My speculation is that it’s a mixture of things: lack of any real interest in nature conservation values in the higher echelons of NE and its board (not a complete lack of interest, but an overall lack of interest (the good guys are outnumbered by the bad guys)), fear of losing and it costing a lot of money, fear of those influential grouse moor owners cutting up rough in lots of other ways, lack of worry that the wildlife NGOs will be as tough as the grouse moor owners and in some cases, the grouse moor owners are the mates of the party of government so it would attract political attention to annoy these people (see pages 149-57 of Inglorious for examples of correspondence when NE last tried to get tough with these people).
So why is NE trying to revoke these burning consents at all? Why not quietly forget about them?: we know the answer to that! It’s because the European Commission is taking infraction proceedings, or might do, against the UK for damaging EU priority habitats by allowing grouse moor owners to danmage them by burning the blanket bogs.
Why is the European Commission doing that?: they are doing that because the UK signed up to the Habitats and Birds Directives and it’s one of the jobs of the Commission to stop back-sliding on the deal by Member States. Yes, all Member States try to cheat a bit, some of them a lot, but the Commission can whip them into shape by negotiating and then imposing fines. That is what is happening here. The Commission has told Defra to end the damaging practices or get hefty fines. Little of this in the public domain, but that is what is happening.
Why is the European Commission all fired up about this?: because it’s their job, and also because they were tipped off about the sad state of affairs by the RSPB making a complaint in 2012 and the Hebden Bridge Ban the Burn campaigners taking a complaint of a similar nature in 2012 or very early in 2013. These complaints were focussed on Walshaw Moor but took a wider view too. Most of the traffic between Defra and the EC is secret but I did flush some of it outback in Wuthering moors 34 in September 2013.
So have I got this right? Defra either has to pay big fines to the European Commission for damaging blanket bogs or big compensation to the grouse moor owners so that they don’t damage blanket bogs?: I think so – it seems crazy doesn’t it? Unless they can get the grouse moor owners voluntarily to agree to stop burning blanket bogs, of course.
But why would the grouse moor owners and managers agree voluntarily to stop doing something they really want to do?: good question! Why would they? Either it means that they aren’t so fussed about blanket bog burning as they pretend to be – I think there will be an element of that in it. And/or, they think they can wring other concessions out of NE in the process – maybe like consents for tracks? And/or the agreements aren’t quite as tough as they are made out to be.
Tell me about the last one of those – pretend toughness: pretend toughness is a good term for it. The Walshaw Moor agreement is a good example of pretend toughness. It allows something called ‘restoration burning’of blanket bogs at the estate’s discretion which could easily amount to ‘carry on as you have been chaps’ and it allows burning of heather for Heather Beetle management too (even though there is scant evidence that burning is helpful in this regard apart from in old wives’ tales). In other words the burning consents are revoked, by mutual agreement, but the ability to burn remains through massive loopholes. See Wuthering moors 58 of 13 February this year.
So you believe that Defra and NE are not clamping down on burning but need the cooperation of moorland owners to roll out this charade and it’s all to con the European Commission into believing, or at least accepting, that the UK has got its act together and is no longer allowing priority habitats to be damaged by burning?: yes, that’s what I think is happening.
So when I asked why did NE produce an unlawful HRA particularly for the construction of a track the short answer is: NE needed to consent the track to get the estate to sign the plan that makes it look as though burning is being controlled and to get the European Commission off the UK’s back?: yes, that’s what I think.
But won’t something like this have to happen on lots of estates across the country for it to work?: yes, so it’s good that we have highlighted this one! Defra may be hoping that the European Commission will start to lose interest when it thinks that it has made some progress. Or maybe Mr Gove is simply promising all that when we leave the EU this or another government will dump this stuff and gives moorland managers carte blanche.
That wouldn’t happen would it?: I am sure that the Commission has been tipped off and I bet they will read this blog. But leaving the EU, and watering down environmental protection – that’s what some strong Brexiteers want, and that’s what we might well get. I didn’t vote for it.
So what should we do?: I’ll come back to that soon. But just take a while, as I am, to celebrate the stick we stuck in the spokes of NE’s wheels yesterday. It was us – we derailed this part of the plan. There are some bruised people out there. Gather ye sticks! More bruising needed!
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.