Environmental Audit Committee let Natural England off the hook about enforcing law on Walshaw Moor Estate

The House of Commons Environmental Audit Committee took oral evidence on wildlife crime on Wednesday 16 May 2012, as part of its audit of “how effectively the Environment Agency and Natural England enforce laws about wildlife crime.”

From the transcript, the audit seems pretty lax. The MPs’ superficial questions failed to focus in adequate detail on whether Natural England has effectively enforced wildlife protection laws on Walshaw Moor Estate (WME).

As a result, the European Commission is the next port of call for organisations and individuals who want to investigate whether Natural England has acted unlawfully, in failing to provide adequate conservation protection to the Walshaw Moor Estate Site of Special Scientific Interest and Natura 2000 site.

Crucially, the Environmental Audit Committee allowed Natural England’s Director of Regulation, Janette Ward, to misrepresent the facts about Natural England’s management agreement with Walshaw Moor Estate, in relation to the issue of unauthorised drainage on the South Pennines Site of Scientific Interest and Natura 2000 site.

So I made an Environmental Information Regulations (EIR) request to Natural England. And then another…see below.

Natural England’s responsibilities for enforcing the law on Sites of Special Scientific Interest

Janette Ward explained Natural England’s responsibilities for enforcing the law on Sites of Special Scientific Interest (SSSIs); this includes enforcing the Heather & Grass Burning Code. She said that, despite Coalition government cuts to Natural England’s funding, their enforcement budget had stayed at around £5.6m/year, with about 120 staff.

LibDem MP Simon Wright asked why there were so few prosecutions for wildlife crime relating to SSSIs – only 10 since 2006. Janette Ward replied that this was because of the

“difficulty of getting sufficient evidence, sufficient information for a criminal investigation and all that that means, relative to the ability to actually see that something has happened. So the difference between those things is quite significant, and clearly quite a high level of evidence is required.”

Why Natural England dropped its prosecution of Walshaw Moor Estate – we are none the wiser

Tory MP Paul Uppal asked why Natural England had dropped its prosecution of Walshaw Moor Estate (WME), and Janette Ward replied that Natural England had brought its prosecution after years of trying and failing to

“reach a reasonable agreement [with the estate] that we can work on. That had not happened, so we took enforcement action. I suppose one might say, as a result of that, we did get to a place where the estate was willing to come to the table and talk about settlement…we moved from a position where we had a completely unregulated situation but with the estate having old consents that allowed that to be the case -so unrestricted ability to do things- to a place where we have a consent agreed with the estate that regulates that situation.”

This is the message that Natural England has put out since it announced its new management agreement with Walshaw Moor Estate.

But organisations like the RSPB, several environmental scientists, and grass-roots local residents’ groups like Ban the Burn see no evidence for Natural England’s assertion that the new Consent and management agreement offer adequate protection for the site’s habitats and wildlife.

Natural England gives misleading, incorrect answer about unauthorised drainage on Walshaw Moor Estate 

Walshaw Moor drainage ditch and grouse shooting butt on severely damaged blanket bog

Paul Uppal MP commented that:

“the management agreement you have is ambiguous on the idea of the whole impact environmentally, on the entire estate, whereas it is specific on some bits of the estate in terms of where there should be grass or heather burning…One of the issues was also around drainage channels. Does the agreement cover that, and did you guys check in terms of whether any unauthorised drainage channels were dug out on the moors? Does the agreement cover it and then was there any checking on that?”

Paul Uppal’s comment that “the management agreement…is ambiguous on the idea of the whole impact environmentally, on the entire estate...” is incredibly damning. It suggests that he believes that Natural England has failed to comply with the Waddenzee Judgment, which provides the legal test which ‘competent authorities’ have to apply when deciding whether to permit farmers and landowners to carry out operations that aren’t necessary for conservation, on protected Natura 2000 sites.

The Waddenzee Judgment requires that Natural England, as the ‘competent authority’ charged with conservation responsibilities for protected sites, must only permit landowners and farmers to carry out operations on these sites if it can be ascertained that ‘no reasonable scientific doubt remains’ that there will not be an adverse effect on the the integrity of the Special Area of Conservation (SAC) & the Special Protection Area (SPA) features. Where doubt remains as to the absence of adverse effects, the plan or project must not be authorized.

By saying that “the management agreement is ambiguous on the idea of the whole impact environmentally, on the entire estate”, Paul Uppal is implying that Natural England has failed to comply with the Waddenzee Judgment. He should therefore have questioned Janette Ward far more closely than he did.

As it is, he allowed Janette Ward to misrepresent the facts about how Natural England’s 2012 agreement with Walshaw Moor Estate deals with the unauthorised drainage that WME had constructed on the moors.

Janette Ward replied:

“The agreement is taking us into the future, and that is what the agreement is about. As part of the agreement there is a management scheme which is designed to restore drainage on the moor through a procedure that is called moor gripping. What it will do is restore water levels on certain parts on the moor so restoring their wildlife interest.”

Natural England photo from their website_filling in grips to restore upland peat

This makes no sense – how does draining the moor restore water levels? Surely it must reduce water levels? Also, the Walshaw Moor Environmental Stewardship Agreement includes capital funding of almost £400K to be spent between 2012-2015 on ” “major preparatory work for heathland recreation”, which is mainly “aimed at blocking grips across extensive areas of the moorland.” OK, so the Environmental Audit Committee met in May, and the Walshaw Moor Estate Environmental Stewardship Agreement hadn’t started then, so it’s possible Ms Ward was talking about the Notice and Consent agreed between Natural England and Walshaw Moor Estate in March 2012.

The Notice and Consent states what operations Walshaw Moor Estate may legally carry out on the Site of Special Scientific Interest and Natura 2000 site. It specifies that maintenance of existing infrastructure is permitted – except no maintenance of moorland drainage is permitted, apart from next to surfaced roads/tracks, walls and within  a 50 metre radius around grouse butts.  This is why I can’t make sense of Ms Ward’s statement – or of the fact that the MPs let it pass without question.

I sent an EIR request to Natural England asking for information about this. They replied (Access to information request – RFI 1710):

Janette Ward’s reply should have stated that “As part of the agreement there is a management scheme which is designed to remove drainage on the moor which has been achieved through a procedure that is called moor gripping”. As such this statement is not at odds with the agreement or consent.

So that’s ok then, Ms Ward just gave a completely misleading and incorrect reply to the Environmental Audit Committee and they didn’t notice.

Natural England’s reply to my EIR request is at odds with their own Statement of Case for the Walshaw Moor Estate Public Inquiry 2012.

In my Environmental Information Regulations request RFI 1710, I also asked Natural England for an answer to Paul Uppal’s questions that Ms Ward had sidestepped:

“…did you guys [sic] check in terms of whether any unauthorised drainage channels were dug out on the moors? Does the agreement cover it and then was there any checking on that?”

This is Natural England’s reply to my EIR request:

“There was no reason or suspicion to check whether any unauthorised drainage channels were created before the new agreement.”

What is going on? This answer is completely at odds with Natural England’s Statement of Case for the 2012 Public Inquiry:

“9.17: In addition to clearing out and thereby re-activating some of the historic gripping, the appellant has excavated new grips without consent.”

Unconsented drainage was also one of the charges Natural England brought against Walshaw Moor Estate in its criminal prosecution, which was to have to come to court in September 2012, but which Natural England abandoned when it signed the March 2012 agreement with Walshaw Moor Estate.

So I wrote back to Natural England asking them to explain their mystifying reply to my EIR request. Natural England’s Tom Keetley said it would be easier to talk on the phone, so we did.

In the course of our conversation, Tom Keetley said that the grips/drains that will be blocked as part of the Environmental Stewardship Agreement are old drains, mostly constructed between the 1940s and 1960s.

Apart from blocking these drains, he explained that the management agreement/Consent allows maintenance of existing infrastructure that was constructed before the site was designated as a Special Area of Conservation (2005) and Special Protection Area (1997), and there is “no proof” that WME created unconsented infrastructure.

I then asked, “So Natural England started prosecution proceedings against Walshaw Moor Estate for unconsented vehicle tracks, grouse butts and drainage, without proof that Walshaw Moor Estate had done this?” And Tom Keetley repeated that there was “no proof”.

What?

WME’s PR company “empowers its clients to anticipate, adapt and influence the governmental decisions that affect their interests”

In early February 2012, Walshaw Moor Estate hired Media House to do pr for it. This is part of how Media House sells itself on its website:

“MH Public Affairs empowers its clients to anticipate, adapt and influence the governmental decisions that affect their interests.

We offer a comprehensive public affairs service, including political monitoring, opinion forming, contact building and guidance on written submissions and oral hearings.

Our experienced consultants combine accurate intelligence with agile lobbying to assist clients in their dealings with legislators, regulators and other decision-makers.

We have advised clients on seeking parliamentary and political assistance at Westminster, at the Scottish Parliament in Edinburgh and in Brussels.”

This is why we urgently need an effective, statutory register of lobbyists. In the meantime, I sent Defra an EIR request asking for information about lobbying by Media House regarding the Walshaw Moor Estate. Defra replied,

“Following a search of our paper and electronic records, I have established that the information that you have requested is not held by Defra 

Under our duty to advise and assist applicants in pursuance of regulation 9, I can confirm that to the best of our knowledge the information is not held by another public authority either.”

This raises the possibility that Media House didn’t lobby Defra on behalf of its client, Walshaw Moor Estate. It also raises the possibility that it did, but off the record.

Clarifications and corrections

This post was updated on 29 August 2012 to include information about the Walshaw Moor Estate Environmental Stewardship Agreement and the Notice and Consent.

It was updated on 5 January 2013 to include information about Natural England’s responses to my EIR requests.