Factual and Procedural Background
This appeal concerns a Stop Notice dated 5 January 2018 served on the Appellant by Natural England pursuant to section 46 of the Regulatory Enforcement and Sanctions Act 2008 and Schedule 3 of the Environmental Civil Sanctions (England) Order 2010. The Appellant operates a commercial game shoot on an estate partially designated as a Site of Special Scientific Interest (SSSI) due to its nationally and internationally significant habitats and bird species.
The Stop Notice prohibits the Appellant from conducting certain activities within the SSSI until specified steps are taken, primarily requiring the Appellant to obtain Natural England's formal consent for game bird releases and associated activities. The Appellant appealed the Stop Notice in January 2018. The appeal was heard in public over two days in June 2018, with representation for both parties and additional representations from trustees of the estate who were permitted to make submissions though not parties to the appeal. The Tribunal reserved its decision following closing submissions.
Legal Issues Presented
- Whether the Stop Notice was validly served and sufficiently clear in specifying the grounds and steps required.
- Whether the Stop Notice was reasonable in its terms, including whether the steps required were within the Appellant’s power to take.
- Whether the Appellant's activities presented a significant risk of causing serious harm to the environment, justifying the Stop Notice.
- Whether the Tribunal should confirm, vary, or cancel the Stop Notice on appeal.
Arguments of the Parties
Appellant's Arguments
- The Stop Notice is invalid as it does not specify steps the Appellant can take unilaterally to comply, requiring joint action with Natural England, thus preventing obtaining a completion certificate.
- Even if valid, the Stop Notice is unreasonable because it demands steps beyond the Appellant’s control.
- The Stop Notice lacks sufficient detail on the grounds for serving it, failing to particularize alleged harm or facts supporting the assertion of criminal offence, leaving the Appellant unable to know the case to meet.
- The Stop Notice is based on error of fact or is unreasonable, as no grounds justify the statutory criteria for its service.
- The Stop Notice imposes an unreasonable blanket ban without distinguishing between more or less sensitive parts of the SSSI.
- It fails to specify minimum permitted activity levels despite previous informal agreements allowing certain releases and shooting days.
- The Stop Notice unreasonably prevents the Appellant from carrying on his business.
Respondent's Arguments
- Absence of steps in a Stop Notice does not render it void; steps need not be unilaterally achievable by the Appellant.
- The steps specified are reasonable, aimed at promoting formal applications under the 1981 Act consistent with habitat regulations, with appeal rights to the Secretary of State.
- The Stop Notice provides sufficient information for the Appellant to understand the basis, supplemented by prior correspondence.
- The statutory grounds for the Stop Notice are met because the Appellant’s activities present significant risk of serious harm to the environment through various impacts including disturbance, soil enrichment, predation, and habitat damage.
- The activities are likely to involve commission of offences under section 28P(6) of the 1981 Act, as the Appellant lacks formal consent for current activity levels.
- A blanket ban was necessary due to the Appellant’s lack of cooperation and transparency, which undermined monitoring and enforcement.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| El Dupont v Nemours & Co v ST Dupont [2003] EWCA Civ 1368 |
Describes the de novo nature of regulatory appeals where the tribunal takes a fresh decision on the evidence. |
Supported the Tribunal’s approach to stand in the shoes of the regulator and exercise discretion in deciding whether to issue or vary the Stop Notice. |
| Forager Ltd v Natural England [2017] UKUT 0148 (AAC) |
Confirmed the Tribunal’s power to amend a deficient Stop Notice and approved the statutory threshold for significant risk of serious harm. |
Guided the Tribunal’s approach to varying the Stop Notice rather than declaring it void. |
| HMRC v Abdul Noor [2013] UKUT 071 (TCC) |
Clarified that the Tribunal has no inherent jurisdiction beyond statutory powers and cannot declare a notice null and void absent express power. |
Informed the Tribunal’s conclusion that it could not declare the Stop Notice null and void but could amend it. |
| R (Hope and Glory Public House Ltd) v City of Westminster Magistrates Court [2011] EWCA Civ 31 |
Emphasized careful attention to original decision-maker’s reasons and the weight to be attached to them on appeal. |
Informed the Tribunal’s approach to giving due respect to Natural England’s original decision while exercising independent judgment. |
| R (Johnson) v Professional Conduct Committee of the Nursing and Midwifery Council [2008] EWHC 885 (Admin) |
Article 6 ECHR requires allegations to be particularized sufficiently to enable the charged party to prepare a defence. |
Supported the Tribunal’s finding that the Stop Notice lacked sufficient clarity and particularity. |
| BT Fleet Ltd v McKenna [2005] EWHC 387 (Admin) |
Recipients of enforcement notices are entitled to know what is wrong and why; unclear directions can invalidate a notice. |
Supported the Tribunal’s conclusion that the Stop Notice was insufficiently clear and precise. |
| Case C-282/15 Queisser Pharma GmbH & Co KG v Bundesrepublik Deutschland |
Permits protective measures under the precautionary principle without full demonstration of risk, provided risk assessment is not purely hypothetical. |
Supported the Tribunal’s acceptance of precaution in relation to the risk of serious harm to the SSSI. |
| Miller-Mead v Minister of Housing and Local Government [1963] |
A notice which is ambiguous can be null and void. |
Referenced by the Appellant’s counsel to argue for nullity of the Stop Notice, though the Tribunal rejected nullity absent express power. |
Court's Reasoning and Analysis
The Tribunal began by addressing the Appellant’s submission that the Stop Notice was null and void due to ambiguity and inability to comply unilaterally. It held that the Tribunal lacks inherent jurisdiction to declare a Stop Notice null and void, being a creature of statute with no express power to do so. Instead, the Tribunal may amend a Stop Notice on appeal, as supported by precedent.
On the clarity of the Stop Notice, the Tribunal found it insufficiently precise in specifying the grounds for service and the required steps, failing the standards of fairness and due process established in analogous case law. The disparity between the Stop Notice and the Respondent’s pleadings meant the Appellant was not fairly informed of the case to meet. The steps requiring the Appellant to obtain Natural England’s consent without procedural safeguards risked depriving him of his statutory rights and were therefore unreasonable.
Turning to the substantive issue of risk of serious harm, the Tribunal applied the statutory threshold and the precautionary principle. It noted that the Respondent accepted historic levels of activity did not pose a significant risk. The Tribunal found no evidence to justify prohibiting activities at those levels and allowed the appeal in respect of them.
The Tribunal analyzed the evidence on activities exceeding historic levels. It found Natural England’s witnesses’ evidence often speculative, lacking detailed risk assessment, and not consistently addressing the statutory test. The Tribunal preferred the Appellant’s expert’s evidence on many points but accepted the heathland specialist’s opinion that the risk of serious harm from disturbance and soil enrichment was proven to the civil standard.
Applying these findings, the Tribunal varied the Stop Notice to prohibit game bird releases and vehicular access above the historic agreed levels, while allowing access for game bird welfare and predator control. It emphasized the need for further site assessment and cooperation between parties to ensure conservation gains and sustainable management.
Holding and Implications
The Tribunal’s final decision was to allow the Appellant’s appeal in part by varying the Stop Notice. The variation clarified that the Appellant must cease:
- The release of pheasants within the SSSI above the previously agreed level of 3,060 birds per season.
- Vehicular access within the SSSI exceeding 24 days per season for game shooting, with exceptions for welfare and predator control.
The Tribunal found the Stop Notice defective in clarity and reasonableness but exercised its power to amend rather than cancel it outright. The decision acknowledges the statutory protections afforded to the Appellant’s rights of appeal and due process while upholding the environmental protection objectives of the legislation.
No new precedent was set beyond confirming the Tribunal’s power to vary Stop Notices and the application of the precautionary principle in environmental regulatory appeals. The direct effect is to impose a proportionate restriction on the Appellant’s activities above historic levels, balancing conservation needs with the Appellant’s business and statutory rights.