Natural England v Warren
| Jurisdiction | UK Non-devolved |
| Judge | Judge Markus QC |
| Neutral Citation | [2019] UKUT 300 (AAC),[2019] UKUT 300 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Environment,Markus,K |
| Date | 02 October 2019 |
| Published date | 24 October 2019 |
Natural England v Warren [2019] UKUT 300 (AAC)
1
IN THE UPPER TRIBUNAL Appeal No. MISC/2242/2018
ADMINISTRATIVE APPEALS CHAMBER
On appeal from the First-tier Tribunal (General Regulatory Chamber)(Environment)
Between:
NATURAL ENGLAND Appellant
- and –
JULIAN EDWARD WARREN Respondent
Before: Upper Tribunal Judge K Markus QC
Hearing venue: The Rolls Building
Hearing dates: 3, 4, 5 July 2019
Decision date: 2 October 2019
Representation:
Appellant: Mr James Maurici QC and Mr Carl May-Smith, instructed by Browne
Jacobson LLP
Respondent: Mr Robert McCracken QC and Mr Sebastian Kokelaar, instructed by
Birketts LLP
DECISION
The appeal is allowed.
The Respondent’s cross-appeal is dismissed.
The decision of the First-tier Tribunal made on 13 July 2018 under number
NV/2018/0006 was made in error of law. Under section 12(2)(a) and (b)(i) of the
Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remit
the case to the First-tier Tribunal for reconsideration in accordance with the
following directions.
Directions
Upon the Appellant undertaking not to prosecute Mr Warren for breach of the stop
notice dated 5th January 2018 pending its variation by the First-tier Tribunal in
Natural England v Warren [2019] UKUT 300 (AAC)
MISC/2242/2018
2
accordance with the directions below, insofar as he limits his activities to those
specified in direction 4 below:
1. The appeal is to be reconsidered by a judge and either one or two members with
substantial experience of environmental matters.
2. The judge should not be the same judge who considered the appeal previously.
3. The papers in this appeal are to be placed before a judge of the First-tier Tribunal
as a matter of urgency for consideration of case management directions for the
progression of this appeal.
4. As soon as possible on receipt of these directions the First-tier Tribunal must vary
the stop notice dated 5th January 2018, by adding the following to Schedule 1:
Save that, until the determination of this appeal or further direction by the
First-tier Tribunal, the following activities are permitted:
a. The release of no more than 3,060 pheasants on the SSSI in any calendar
year;
b. The release of no more than 2,000 partridge on or within 500 metres of the
SSSI in any calendar year;
c. Carrying out of shooting activities on the SSSI on no more than 24 days
per shooting season (a day meaning any part of a calendar day); and
d. Use of vehicles on the SSSI for the purpose of shooting activities on no
more than 24 days per shooting season and at no other times of the year,
except insofar as is necessary for gamebird welfare and pest control
related to the levels of activity above. Vehicles are to be used on existing
tracks only.
REASONS FOR DECISION
Contents
Introduction paras 1-10
Legislative regime 11-37
Background and the First-tier Tribunal’s decision 38-50
Discussion and conclusions
Ground 1: Application of the Habitats Directive and Regulations
to the First-tier Tribunal 51-76
Grounds 2 & 5: Application of the precautionary principle and
reasons 77-145
Whether the precautionary principle applied 78-90
What the precautionary principle required of the tribunal 91-97
The duty to give reasons 98-101
The tribunal’s approach to Natural England’s evidence 102-113
The specific grounds of challenge 114-145
Ground 3: Natural England’s reasons for service of the stop notice 146-155
Natural England v Warren [2019] UKUT 300 (AAC)
MISC/2242/2018
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Ground 4: Obtaining consent as a step 156-170
Cross-appeal: Nullity 171-179
Disposal: 180-206
Introduction
1. This is an appeal brought by Natural England against the decision of the First-tier
Tribunal (‘First-tier Tribunal’) by Mr Julian Warren against a stop notice dated 5th
January 2018 (‘the stop notice’) which was served on him by Natural England.
2. Natural England is the government’s statutory adviser for the natural
environment in England. It was established under the Natural Environment and
Rural Communities Act 2006 (‘the NERC’). Section 2(1) of the NERC provides
that “Natural England's general purpose is to ensure that the natural environment
is conserved, enhanced and managed for the benefit of present and future
generations, thereby contributing to sustainable development”. Natural England
has a number of enforcement functions including service of stop notices which, in
bare outline, prohibit a person from carrying on a specified activity or activities
which are believed to be seriously harmful to the environment.
3. Mr Warren runs a commercial shoot on the Blythburgh Estate at Walberswick in
Suffolk (“the Estate”). He has held shooting rights on the Estate since 2005. A
significant part of the Estate is comprised within the Minsmere and Walberswick
Heaths and Marshes Site of Special Scientific Interest (“the SSSI”). A designated
SSSI is recognised as a representative sample of the best sites for flora, fauna,
geology and physiography in England, as explained further below.
4. Parts of the SSSI, including areas affected by Mr Warren’s activities, are also
within the Minsmere and Walberswick Heaths Special Conservation Area and the
Minsmere – Walberswick Special Protection Area. These are “European Sites”
as defined by the Habitats Regulations 2017 and are strictly protected under the
Habitats and Wild Birds Directives both of which are discussed in more detail
below. Other national and international designations also apply to the affected
area, reflecting its environmental significance. Thus the site with which this
appeal is concerned is of national, European and international importance in
nature conservation terms.
5. Due to concerns held by Natural England regarding the impact of Mr Warren’s
activities on the site, and following various correspondence and meetings,
Natural England served the stop notice. It was addressed to Mr Warren and read
as follows:
“Natural England reasonably believes that an activity carried on by you:
• Is causing, or presents a significant risk of causing, serious harm to
human health and/or the environment (including the health of animals
and plants); and
• Involves or is likely to involve the commission of a relevant offence.
In that, the numbers of pheasant released within the Minsmere-Walberswick
Heaths and Marshes SSSI and numbers of partridge released adjacent to but
outside the boundary of SSSI presents a significant risk of causing serious
harm to breeding and wintering bird assemblages, invertebrate assemblages
and heathland vegetation communities that form part of the notified interest
of the SSSI. Furthermore, the vehicle movements and shooting activity
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