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:
- erred in deciding that the Habitats Regulations did not apply to it.
- failed to apply the precautionary principle to the test of significant risk of serious harm.
- erred in holding that the reasons specified in the stop notice were insufficient.
- 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.
- 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.
