Home > News > Upper Tribunal gives decision in environmental civil sanctions stop notice case

The Upper Tribunal (Upper Tribunal Judge K Markus QC) today gave judgment in MISC/2242/2018 Natural England v Warren. This is only the second time that the Upper Tribunal has considered an appeal against a stop notice served under Schedule 3 of the Environmental Civil Sanctions (England) Order 2010. The only previous case being the decision of the Upper Tribunal in Forager Limited v Natural England [2017] UKUT 0148 (AAC).

The issues raised on this appeal brought by Natural England included that the First-tier Tribunal:

  1. erred in deciding that the Habitats Regulations did not apply to it.
  2. failed to apply the precautionary principle to the test of significant risk of serious harm.
  3. erred in holding that the reasons specified in the stop notice were insufficient.
  4. erred in holding that the steps specified in the stop notice – namely the obtaining of consent under the Wildlife and Countryside Act 1981 – were unlawful.
  5. gave inadequate reasons for its decision.

There was also an issue raised by the Respondent who cross-appealed on the ground that the First-tier Tribunal ought to have found the stop notice to be a nullity, and that Forager was wrongly decided on this issue.

The Upper Tribunal allowed Natural England’s appeal and set aside the decision of the First-tier Tribunal: the matter has now been remitted to a differently constituted First-tier Tribunal. Natural England’s grounds 2 – 5 were upheld and the cross-appeal dismissed. The decision contains useful guidance on:

  • the application of the precautionary principle to decision-making by the First-tier Tribunal;
  • the standard of reasons required for stop notices;
  • consent as a step specified in a stop notice;
  • the standard of reasons required of the First-tier Tribunal;
  • nullity.

A copy of the decision can be found here.

James Maurici QC appeared with Carl May-Smith for Natural England, the successful appellant, instructed Browne Jacobson LLP. James also appeared for Natural England in the earlier Forager case.

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