Natural England v Warren: [2019] UKUT 300 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Markus QC on 2 October 2019.
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Judicial Summary
“Natural England served a stop notice on the Respondent prohibiting the release onto and shooting of pheasant and partridges on land in a Site of Special Scientific Interest (‘SSSI’). The FTT decided that the stop notice was unlawful and amended it so as to remove certain prohibitions. Natural England appealed to the Upper Tribunal and the Respondent cross-appealed.
The Upper Tribunal decided: 1. When determining an appeal against a stop notice, the FTT is not a competent authority for the purpose of Article 6(3) of Council Directive 92/43 EC (‘the Habitats Directive’) or Regulation 63(1) of the Conservation of Habitats and Species Regulations 2017 (‘the Habitats Regulations’), nor is a decision by the FTT to remove or relax prohisbitions in a stop notice a ““consent, permission or authorisation”” within either of those provisions. 2. In determining an appeal against a stop notice, the FTT must act consistently with the precautionary principle because a) Article 6(2) of the Habitats Directive is binding on it; b) the tribunal stands in the shoes of Natural England which is required by articles 9 and 10 of the Habitats Regulations to exercise its functions so as to secure compliance with the Habitats Directive. According to that principle, a plan or project is likely to have a significant effect on a site’s conservation objectives if the risk cannot be excluded on the basis of objective information. 3. The FTT erred in its approach to the evidence in that it a) incorrectly decided that Natural England’s witnesses were not expert witnesses because they were employed by that party; b) failed to apply the precautionary principle in substance; c) in its reasons for deciding to prefer the evidence of one witness over the others. 4. An operation taking place on land adjacent to a site of special scientific interest (‘SSSI’) but affecting land in the SSSI is not an operation ““on that land”” within the meaning of section 28E(1) of the Wildlife and Countryside Act 1981 and so did not require consent under section 28E. However, the activity could be the subject of a stop notice where the commission of an offence under section 28P(6) could be relied on. 5. The FTT erred in failing to make relevant findings or to provide reasons for the removal from the stop notice of any prohibition on the release of partridges or of shooting activities. 6. A requirement to make an application to Natural England for consent to an activity was ineffective and was not a step within paragraph 1(7) of Schedule 3 of the Environmental Civil Sanctions (England) Order 2010 (‘the 2010 Order’) However, a requirement to obtain Natural England’s consent to an activity could lawfully be imposed as a step. A requirement to obtain Natural England’s agreement could also lawfully be imposed as a step. 7. The FTT erred in deciding that the reasons contained in the stop notice were inadequate. In deciding whether the reasons were adequate it was permissible to take into account other information provided by Natural England to the Respondent. 8. A stop notice which fails to specify steps within the meaning of the 2010 Order is not a nullity. Forager Ltd v Natural England [2017] UKUT 0148 (AAC) followed. 9. The decision of the FTT was set aside and the the matter remitted to the FTT for reconsideration. Although the Upper Tribunal did not have power to vary or suspend the original stop notice pending the FTT’s reconsideration, the FTT did have such power pursuant to Article 10 of the 2010 Order. Using its power in section 12(2)(b)(i) of the Tribunals Courts and Enforcement Act 2007, the Upper Tribunal directed the FTT to vary the stop notice pending the determination of the appeal.
Decision selected for reporting as [2020] AACR 10