Conservation watchdog’s approval of grouse shooting estate operations on protected moors may fail key legal test

Information I have obtained through Environmental Information Regulations requests shows that Natural England’s 2012 environmental impact assessment of Walshaw Moor Estate’s  grouse shooting operations appears not to pass a crucial legal test.

The assessment fails to show that no reasonable scientific doubt exists that Walshaw Moor Estate’s burning and draining of blanket bog (and other operations) will not damage the integrity of the protected conservation site. This calls into question the validity of the £2.5m Walshaw Moor Estate Environmental Stewardship Agreement, since the ESA  is based on the Appropriate Assessment conclusion that WME’s operations will not have adverse effects on the integrity of the site.

As a result, Hebden Bridge residents involved in the Ban the Burn campaign have asked the European Commission to investigate the possible misallocation of Environmental Stewardship subsidies to Walshaw Moor Estate.

Appropriate Assessment

An Appropriate Assessment/Habitats Regulations Assessment is a form of environmental impact assessment that Natural England has to carry out if a farmer/landowner proposes to carry out an operation that may have a direct or indirect impact on a Site of Special Scientific Interest, but that is not directly connected with or necessary to management for nature conservation.

In preparing an Appropriate Assessment (the term for an environmental impact assessment of operations likely to damage a protected site), the ‘competent authority’ has to apply a legal test established in the Waddenzee Judgment, that “no reasonable scientific doubt remains”  that there will be no adverse effects on the integrity of the site. Walshaw Moor Estae (WME) is a Site of Special Scientific Interest and a Natura 2000 site.

The competent authorities for the Walshaw Moor Estate Appropriate Assessment are Natural England and the Defra Secretary of State.

The Royal Society for the Protection of Birds has already asked the European Commission to investigate Natural England’s “probably unlawful” activities regarding Walshaw Moor Estate.

Ban The Burn has asked the European Commission to widen its investigation, to include the Defra Secretary of State’s responsibility for the possibly unlawful Appropriate Assessment.

Appropriate Assessment  was prepared as part of 2012 Public Inquiry

From an Environmental Information Regulations request, I have found that Natural England carried out an Appropriate Assessment/ Habitats Regulations Assessment (HRA) of the grouse shooting management activities proposed in Walshaw Moor Estate’s Notice of Proposal to Carry out Operations.

Natural England based its Assessment on a document submitted as evidence on behalf of Walshaw Moor Estate (WME) to last year’s Public Inquiry, where WME appealed against Natural England’s attempt to stop them carrying out activities that were damaging the South Pennines Site of Special Scientific Interest.

This document, a December 2011 report by Michael Webb of SLR Global Environmental Services, set out Walshaw Moor Estate’s proposed management regime, as required by the Habitats Regulations so that Natural England could carry out an Appropriate Assessment.

Natural England’s Appropriate Assessment concluded that Walshaw Moor Estate’s

“new management arrangements, by introducing specific controls as part of agreed restoration programme, made it possible to ascertain that they would not adversely affect the integrity of the European site.”  (Tom Keatley, Natural England 6/11/2012 email in response to Jenny Shepherd’s EIR request RFI 1731).

(As well as being part of a Site of Special Scientific Interest, Walshaw Moor Estate is also part of a European Natura 2000 site.)

Results of Appropriate Assessment

The Appropriate Assessment of WME Notice judges that WME’s Notice represents the Estate’s acceptance of “significantly improved regulatory control over its operations”, compared to its activities under the 1995 Consent, and that this creates an “opportunity…to move towards achievement of the site’s conservation objectives.

The proposed operations/activities in WME’s Notice are for the purpose of managing the land for grouse shooting and agriculture.

The Appropriate Assessment concludes that it can be ascertained that:

  • the proposed burning rotations on active and degraded blanket bog and wet heath will not have an adverse effect on the integrity of the South Pennine Moors Special Area of Conservation (SAC) & the Special Protection Area (SPA) features
  • the proposed rotational burning on dry heath (12-16years) will not have an adverse effect on the integrity of the South Pennine Moors SAC & the SPA features
  • the proposed catch-up burning on dry heath and active and degraded blanket bog will not have an adverse effect on the integrity of the South Pennine Moors SAC & the SPA features

Similarly with all the other proposed measures in WME’s Notice: Natural England’s Appropriate Assessment concludes that they will not have adverse effects on the integrity of SAC habitats and the SPA features.

Heather burning

Reasons to doubt these results

I have doubts about the results of Natural England’s Appropriate Assessment/HRA for the following reasons:

The scientific evidence base for Appropriate Assessment judgements about the effectiveness of controls on burning and other management practices is not clear. In fact Natural England is currently carrying out an evidence review of upland management, in order to identify evidence-based best practice, that includes the effects of burning and draining regimes on blanket bog restoration.Natural England states:

“it is important that our advice and decisions are based on sound evidence, and that our evidence processes are transparent and robust. To help us to ensure that this is the case, we have decided to carry out a review of the evidence that we use to formulate our advice and decisions in the uplands. This is part of a wider Natural England Upland Delivery Review Programme which we hope will help us to strengthen our working relationships with those who own and actively manage the uplands.”

While the Uplands Review was in progress, there could be no clear scientific consensus about how to effectively restore blanket bog, so what was the scientific basis for the judgements Natural England made in the Appropriate Assessment about the proposed burning regimes?

The legitimacy of this question is borne out by David J Glaves_final Proof of Evidence submitted on behalf of Natural England to the 2012 WME Public Inquiry.

Glaves is Senior Specialist on uplands in the Land Management Development Unit of Natural England.

His Proof of Evidence states that in his view,

“rotational burning on blanket peat is damaging to the ecological structure and function of the habitat and, therefore, to the objectives of the maintenance of blanket bog in actively peat-forming condition and of the restoration of degraded, modified bog back to such a state.”

His Proof of Evidence also explains that Natural England will not be able to make an evidence-based decision about the long-term sustainability of rotational burning on blanket bog until it has considered:

  • the Moorland Best Practice Burning Group’s 2010 draft interim statement on burning rotations
  • the IUCN (International Union for Conservation of Nature ) UK Peatland Programme’s Commission of Inquiry  recommendations
  • Natural England’s own ongoing internal review of the impacts of burning on peatlands, in response to the IUCN Peatland Commission of Inquiry

This makes it clear that at the time of carrying out the Appropriate Assessment, Natural England did not have the scientific evidence to hand that would make it possible to judge that no reasonable scientific doubt remains that WME’s burning operations would not damage the integrity of the Natura 2000 site. This is the legal test that Appropriate Assessments must apply, according to the precedent of the Waddenzee Judgement.

In addition, as a result of further EIR requests,(on-the-record phone conversation with Tom Keatley) it is clear that Natural England will not be able to determine whether the  WME burning regime, as considered in the Appropriate Assessment, is in fact an improvement on previous practices on the Estate, until the WME habitat mapping exercise is completed, which may be as late as December 2013.

This has to raise serious questions about whether Natural England is doing its job of enforcing European Union and UK habitats and wildlife protection law, and whether the £2.5m+ Walshaw Moor Estate Environmental Stewardship Agreement is a misuse of public money.

Need to investigate whether Natural England has failed to satisfy the legal requirements laid out in the Waddenzee Judgment

In its Statement of Case (SoC) to the Public Inquiry into the Appeal by Walshaw Moor Estate Ltd Against Natural England’s Notice of Modification of Consent, Natural England outlines and endorses the Waddenzee Judgment.

This Judgment sets the legal tests that competent authorities must use when carrying out an Appropriate Assessment.

Natural England’s SoC explains that the Waddenzee Judgement says that the ‘competent authority’ can only decide that an Appropriate Assessment shows that proposed operations will not adversely affect the integrity of a protected SPA/SAC site on the basis that:

“ ‘no reasonable scientific doubt remains as to the absence of such effects.’ Competent national authorities must be ‘convinced’ that there will not be an adverse effects [sic] and where doubt remains as to the absence of adverse effects, the plan or project must not be authorized…  (Original emphasis)”

(Source: SoC 4.9, 4.10)

Given serious grounds for doubt that Natural England’s WME Appropriate Assessment satisfies this crucial legal test, there is a need to investigate whether the Appropriate Assessment complies with the Waddenzee Judgment.

Updated 2nd Feb 2013

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