Environment Tribunal ruling ‘breached precautionary principle’ says appeal ruling

The Upper Tribunal has quashed an “ineffective” and “fundamentally flawed” decision to lessen restrictions on game bird shooting in a heavily protected part of coastal Suffolk.

Releases of pheasants and partridges may continue, but only at a twentieth of previous levels, ruled judge Kate Markus earlier this month, in only the second stop notice case the Upper Tribunal has heard since its inception. It is the fourth environmental case of any kind that has come before it.

The decision, published by the Courts & Tribunals Service last week, concerns the activities of Julian Edward Warren, who has run the Walberswick Shoot on the Blythburgh Estate in Suffolk since 2005. Two thirds of the site is covered by part of the Minsmere and Walberswick Heaths and Marshes site of special scientific interest (SSSI), a special protection area and a special conservation area. It is thus “of national, European and international importance in nature conservation terms”, said Markus.

It was formerly a national nature reserve, until Natural England was forced to remove the designation, after it failed to agree terms to continue a lease.

Due to concerns about the impacts of Warren’s business, Natural England served a stop notice on him on 5 January 2018. It stated that the release of pheasants within and partridges just outside the SSSI presents “a significant risk of causing serious harm” to birds, invertebrates and heathland vegetation. Vehicle movements and shooting “are also likely” to cause ecological disturbance, it stated.

Warren’s activities were probably intentionally or recklessly destroying, damaging or disturbing protected land, prohibited under section 28P(6) of the Wildlife and Countryside Act 1981, in Natural England’s view. It therefore prohibited the release of pheasants within the SSSI and partridges within 500m of it, alongside vehicular access for any purpose, pending any written consent for such activities that might be granted.

A subsequent appeal to the First-tier Tribunal’s environment chamber (known as the Environment Tribunal), led to a partial amendment to the stop notice. The most important was lifting all restrictions on partridges, 60,000 of which Warren releases each year.

It also allowed up to 3,060 pheasants to be released per season and vehicular access for shooting on no more than 24 days per year. The appellant was instructed to make a formal application to Natural England for consent for “any and all activities likely to impact the SSSI’s notified features”.

The restriction on pheasants represents a dramatic reduction in Warren’s business. The Upper Tribunal’s decision noted that 40,000 of them are released each year and 125 shooting days are organised.

But during a hearing in July, the regulator claimed that the tribunal had erred in deciding that the Habitats Regulations did not apply to the case, that it had “failed to apply the precautionary principle” and gave “inadequate reasons for its decision”. Natural England considered that all activity should stop until consent is obtained because, in essence, “it considered that Mr Warren could not be trusted” said the decision.

Markus rejected Natural England’s claim that the First-tier Tribunal was obliged to undertake an appropriate assessment, as it was acting as a public authority bound by the regulations. All other elements of its arguments were upheld.

Although the release of partridges outside the SSSI would not require Natural England’s consent, it was “capable of being made subject to a stop notice” and could give rise to a criminal offence, the Upper Tribunal confirmed.

It also held that the Environment Tribunal was in breach of the precautionary principle when it when removed the prohibition on vehicle movements and shooting activity. It was common ground between the parties that these activities presented some risk to wildlife that needed to be assessed, but this did not justify lifting the prohibitions.

Markus criticised how the tribunal had amended the notice by requiring Warren to merely apply for consent, rather than obtain it, as the original stated. The notice could therefore be met even if Natural England rejected the application. This loophole was borne out by subsequent events, as Warren sought to continue activity at levels considered unsustainable by Natural England.

The Upper Tribunal dismissed the lower tribunal’s conclusion that the original stop notice contained insufficient reasons for its service. It was held to “an unjustifiably high standard” that could delay the imposition of such notices in the future, says this month’s ruling.

Simply quashing the first ruling would have restored the blanket ban in the original stop notice, even though the regulator subsequently agreed that limiting Warren’s business would be sustainable. Markus therefore varied the stop notice, pending a “complete rehearing involving extensive expert and factual evidence” by a different Environment Tribunal judge backed by one or two expert members.

Under Markus’ interim terms, up to 2,000 partridges may be released on or within 500m of the SSSI each year, and no more than 3,060 pheasants within it. Shooting activities will be restricted to 24 days per year, with vehicle access for shooting limited similarly. Natural England has agreed not to prosecute if Warren abides by these conditions.

Natural England was unwilling to comment before the Environment Tribunal reconsiders the case. ENDS also approached Warren for comment.

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