A current appeal by the Walshaw Moor Estate under s. 28E of the Wildlife and Countryside Act 1981 against a modification of consent for operations on a site at Walshaw Moor, West Yorkshire raises important questions about the survival of traditional management of upland habitats in the UK, especially those (such as this) which are managed for grouse. The management of upland estates on which there are driven grouse shoots includes the periodic burning of heather to regenerate heather on which the grouse feed and which also helps provide protection against wildfires which are of increasing concern in times of climate change and given the public access to the area (the site includes the Pennine Way and is in Brontë country). Walshaw and the adjoining Lancashire Moor have been managed for driven grouse since the 19th Century including by traditional methods of burning. Modern burning is considered less damaging since it uses what Defra’s Heather and Grass Burning Code 2007 describes as “cool burns” – which are ones carried out using better technology at times of the burning season when the vegetation is more moist than would have been possible years ago and utilising modern equipment to control the spread of the fire.
The site was designated SSSI in 1995 predominantly for reasons which related to ornithological interest and subsequently (in phases) as a SPA under the Wild Birds Directive and a SAC under the Habitats Directive because of its upland habitats including extensive areas of blanket bog. The blanket bog (like most in the South Pennines) is degraded largely as a result of the pollution caused following the Industrial Revolution and little remains of the sphagnum mosses which are primary responsible for bog formation. Natural England had sought to negotiate burning rotations for both the heather on the blanket bog and on the dry heath habitats and since agreement could not be reached over the precise areas to be burned and the length of rotations, served a notice in March 2010 under s. 28E of the 1981 stipulating such areas and rotations. Following service of a notice of appeal, an inquiry was fixed to start in early January 2012 (it opened on 10 January and evidence concluded on 11 February) but in early December and without prior notice or consultation NE served new notices (including one under reg. 23 of the Conservation of Habitats and Species Regulations 2010) and now contends that there should be no burning on blanket bog at all. Although there are many conservation objectives, and there are some advantages for bird species, it is contended that such burning threatens the integrity of the SAC since it prevents it moving towards favourable conservation status although NE position (given in the last two annual condition assessments) is that burning has not caused the habitat to deteriorate. These matters are in contention and expert evidence has been given on both sides. Other related issues with regard to grazing and the use of vehicles on blanket bog (the site is a large and remote one) also arise.
What is also significant is that NE has entered into many agreements with other upland estates (c. 73) permitting rotational burning of heather on protected blanket bog habitat and in which it has not adopted the position it suddenly adopted in December 2011. There has been no public consultation with regard to the change of position and no sign of any review of existing agreements which allows what is said by NE to harm the integrity of the Natura 2000 sites. The inquiry is in the odd position that neither side supports the notice (the Estate has advanced expert evidence that there can be such burning and that the science supports more frequent burning that NE supported in its notice) since NE now prefers the position in its new s. 28E notice, which has recently itself been appealed but continues to argue that the 2010 notice should be upheld since it is better than existing consents (which have been in place since 1995) in terms of protecting the Natural 2000 Sites. It does contend, however, that such notices are “all or nothing” and that despite the provisions of s. 28F of the 1981 Act the Secretary of State has no power to direct a modified notice: she must either accept or reject it. This point is also disputed by the Appellant.
In parallel with the appeals, NE also served a notice under reg. 23 of the 2010 Regulations a month before the inquiry attempting to stop the burning on the blanket bog even in advance of the appeal decision. Singh J. stayed the notice, granted permission and ordered an expedited hearing of the Estate’s judicial review of that notice given the wider public importance of the issues. This will be heard in the High Court in Leeds on 22 February. This raises a stark issue of the vires of the notice (since reg. 23 appears to apply only when European Sites were designated after 1.4.10), issues of reasonableness, fairness, legitimate expectation, inconsistency, discrimination and Article 1 of the First Protocol of the ECHR.
The issues in the appeals and the judicial review have wide implications for the management of the UK’s uplands and for the continuing protection of those habitats which are provided by the big estates. They have had a great influence on the shaping and protection of the landscape and countryside for centuries. If the effect of the decisions is to make it unviable or unattractive for the estates to continue as they do at present, the implications for the wider protection of our uplands in the longer term are serious.