On 29 January 2018 the First-tier Tribunal (General Regulatory Chambers) Environment (“FTT”) has handed down the latest decision in the long-running Forager Ltd v Natural England proceedings (NV/2015/0002) which concern an appeal against a stop notice served under Schedule 3 of the Environmental Civil Sanctions (England) Order 2010 (“the 2010 Order”).
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.
On 30 November 2015 the FTT dismissed Forager Ltd’s appeal and Forager Ltd then took the matter to the Upper Tribunal. The Upper Tribunal’s decision (Upper Tribunal Judge Levenson) was the first to consider the stop notice jurisdiction in the 2010 Order.
The Upper Tribunal rejected most of the grounds of appeal (see here) but allowed the appeal on one limited point. It was 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 was directed 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.
Following a re-hearing in December 2017 the FTT has upheld the steps proposed by Natural England and rejected those proposed by Forager Ltd.
The decision contains a detailed discussion of the relationship between the SSSI regime in the Wildlife and Countryside Act 1981, the 2010 Order and the Habitats Regulations. There is also an interesting discussion on when foraging may be a crime under the Theft Act 1968.
James Maurici QC appeared for Natural England, instructed by Browne Jacobson LLP.