Walshaw Moor Estate – Natural England Judicial Review

INTRODUCTION

This case study concerns Gordons’ representation of Walshaw Moor Estate, as it resisted attempts by Natural England, the government’s environmental advisor, to restrict grouse moor management activities on its 16,000 acre site. This stands in the south Pennines, straddling the Lancashire/Yorkshire border.

Walshaw Moor owns or leases sporting rights to almost 6,500 hectares, mainly managed as driven grouse moors. The estate increased its production of grouse from 100 brace a season to 3,000 over the last 10 years and burns areas of heather to provide patches of young shoots for red grouse to feed on.

The estate is part of a special conservation area, a site of special scientific interest and a special protection area. It contains large areas of blanket bog, a type of moorland where deep peat deposits cover a landscape.

In implementing several legal actions against Walshaw Moor, Natural England ultimately sought to ban all heather burning, vehicle use and grazing on blanket bog, even where these activities had taken place for decades. If successful, the organisation would therefore have threatened traditional estate management practices used not just at Walshaw Moor but grouse moors throughout the UK, an outcome which would have had profound implications for the entire rural economy.

Walshaw Moor’s initial appeal was against a Notice of Modification of Consent issued by Natural England under section 28E(6), of the Wildlife and Countryside Act 1981.

Alongside the appeal, Gordons’ regulatory specialists successfully defended a criminal prosecution which Natural England launched, alleging 43 breaches by the estate of the Wildlife and Countryside Act’s provisions concerning managing a site of special scientific interest.

Natural England also served an additional “stop” Notice under Regulation 23, Conservation of Habitats and Species Regulations 2010, which would have immediately made using vehicles and grazing sheep on the estate a criminal offence. This would have required that hundreds of sheep be removed in the middle of December, without vehicles being used.

Gordons, however, made a successful without notice application to the Administrative Court in Leeds for an interim injunction staying the notice.  At the same time Gordons applied for permission to judicially review the decision of Natural England to serve the stop notice.

The injunction and application for judicial review was opposed by Natural England at a full day’s hearing before Mr Justice Singh at the High Court in Leeds whilst the public inquiry was still ongoing (requiring a stay in the inquiry process to allow the legal team to attend the Court hearing).  The judge noted that the case was one of potential importance and public interest, and gave permission for the Walshaw Moor Estate to judicially review the actions of Natural England.

Gordons then managed a five-week public inquiry, at which over 20 witnesses, including 10 experts, testified. This was of test case significance and was one of the first of its kind under the Wildlife and Countryside Act.

The inquiry considered important questions of moorland ecology, grazing, and heather burning for grouse-rearing in areas of blanket bog and heathland habitats. It also examined powers and duties that Secretary of State for the Environment, Food and Rural Affairs has under the Habitats Directive and the Wildlife and Countryside Act.

In March, shortly after the inquiry adjourned for the inspector to prepare his findings, Walshaw Moor  and Natural England agreed a settlement, including a stewardship contract over the next 10 years. The estate is content that the agreement will allow grouse at the site to continue flourishing.

LEGAL EXPERTISE AND INNOVATION

This is evidenced in the above case by Gordons:

  • Arranging detailed analysis of the scientific evidence
  • Collating and presenting detailed factual and historic evidence of moorland operations at Walshaw Moor
  • Successfully defending the criminal prosecution
  • Making a successful application to the Administrative Court in Leeds for an interim injunction staying the “stop” notice
  • Obtaining permission for the Walshaw Moor Estate to judicially review the actions of Natural England and defeating Natural England’s opposition to the permission
  • Managing the five-week public inquiry
  • Advising its client on agreeing a settlement which will allow its grouse to continue flourishing

PROJECT MANAGEMENT SKILLS

Three separate disputes – the public inquiry, criminal prosecution and application for injunctive relief and judicial review – had to be handled simultaneously. The project lasted almost two years and Gordons’ activity included arranging detailed analysis of scientific evidence relating to the burning of heather and collating expert evidence from internationally-recognised leading specialists in the field.

The project involved many site visits with experts and the consideration and review of a substantial number of academic papers. The criminal prosecution required that historic aerial photography be analysed in detail and the history of the estate and its land management use investigated.

Preparation for the public inquiry involved working closely with DEFRA to identify a suitable venue and preparing and maintaining significant copies of documents and core bundles that were available for the inspector and public.

The team had to coordinate the experts, a team of three counsel, and organise and attend further site visits during the inquiry, with the inspector and selected experts. Substantial paperwork was generated which had to be collated and distributed throughout the inquiry. Detailed aerial photographic evidence was also sourced and reviewed, and substantial applications for further evidence were made through a variety of Freedom of Information Act and Environmental Information Requests.

TEAM WORKING

This is evidenced in the above case by Gordons:

  • Liaising very effectively with its client (see the testimonial from him below).
  • Co-ordinating the activities of its commercial litigation department, who advised on the bulk of the case, with those of its regulatory team, who successfully fought the criminal prosecution
  • Working with David Elvin QC, James Maurici and Richard Moules, counsel at Landmark Chambers, whom they instructed over the public inquiry, interim injunction and application for judicial review
  • Working with John Kelsey Fry QC, whom they instructed over the criminal prosecution

CLIENT SATISFACTION

This is evidenced by the following quote from Richard Bannister, owner of Walshaw Moor Estate:

“This was a complex, long-lasting and multi-stranded case, demanding legal expertise in breadth and depth, reinforced by first-class project management and human relations skills. Gordons delivered in all these respects and others, allowing us to reach a highly acceptable settlement which has enabled us to rebuild a constructive relationship with Natural England and ensure that the special interest features of the moor and the interests of the estate are protected and enhanced for the benefit of all for years to come. I cannot thank the firm or recommend it highly enough.”

Please contact Matthew Howarth to discuss Dispute Resolution and Judicial Reviews.