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Upper Tribunal gives first environmental civil sanctions decision

DATE: 21 Apr 2017

The Upper Tribunal Administrative Appeals Chamber (Judge Levenson) today gave its decision on the first appeal to the Upper Tribunal against a stop notice served under Schedule 3 of the Environmental Civil Sanctions (England) Order 2010 in the case of Forager Ltd v Natural England (MISC/0926/2016).

The stop notice in issue was served by Natural England on Forager Ltd and sought to prevent that company from foraging for sea kale within the areas of Dungeness, Rye Bay and Romney Marshes which are SSSIs and a SAC. Forager Ltd is a commercial company which forages wild plants and fruits for supply to restaurants. 

The First-Tier General Regulatory Chamber (Environment) (“FTT”) dismissed Forager Ltd’s appeal (NV/2015/0002) and Forager took the matter to the Upper Tribunal.

The grounds of appeal to the Upper Tribunal included: 

  1. The stop notice was invalid because it did not specify steps to be taken;
  2. The FTT failed to apply the criminal standard of proof;
  3. The FTT erred in its approach to the meaning of “significant risk” in para 1(5) of Schedule 3 of the 2010 Order;
  4. The FTT misdirected itself as to the meaning of “serious harm” in para 1(5) of Schedule 3 of the 2010 Order;
  5. The FTT misdirected itself as to “intentionally or recklessly” in s. 28P(6) of the Wildlife and Countryside Act 1981 (“the 1981 Act”) as applied by para. 1(5)(c) of the 2010 Order.

The Upper Tribunal following a rolled-up hearing granted permission to appeal but then dismissed the appeal on grounds 2 – 5.

On Ground 1 it allowed the appeal but only to “a limited extent”. The Upper Tribunal ruled that the Stop Notice was invalid and potentially currently unenforceable but not a nullity because it did not specify the steps to be taken but that the FTT had power to correct this defect. Accordingly, it ruled that the case should be returned to the FTT but with a direction that the decision to uphold the reasons for the Stop Notice is to remain. The FTT are to decide the limited issue as to what ‘steps’ should be included in order to comply with the Stop Notice, by way of a variation of the Notice.

The decision provides useful guidance on:

  1. The standard of proof applicable in environmental civil sanction cases;
  2. The meaning of the phrases “significant risk” and “serious harm” in Schedule 3 of the 2010 Order;
  3. The mens rea required for an offence under s. 28P(6) of the 1981 Act.

James Maurici QC appeared for Natural England, instructed by Browne Jacobson LLP.