Upper Tribunal hears first Environmental Civil Sanctions Order stop notice appeal

The Upper Tribunal Administrative Appeals Chamber (Judge Levenson) today heard the first appeal to the Upper Tribunal against a stop notice served under Schedule 3 of the Environmental Civil Sanctions (England) Order 2010. 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) on 25 November 2015 and refused permission to appeal on 29 February 2016. The application for permission to appeal to the Upper Tribunal was listed to be heard today on a rolled-up basis. The grounds of appeal include:

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 as applied by para. 1(5)(c) of the 2010 Order.

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