Natural England v Warren, Upper Tribunal (Administrative Appeals Chamber), Judgment, Law, casemine.com

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Natural England v. Warren

Smart Summary

Factual and Procedural Background

This appeal arises from a stop notice served by a governmental environmental regulator ("Appellant") on an individual ("Respondent") who operates a commercial game shoot on a large estate, part of which is designated as a Site of Special Scientific Interest (SSSI) and also forms part of European protected sites (Special Area of Conservation and Special Protection Area). The stop notice prohibited certain activities including the release of game birds (pheasants and partridges), vehicle access, and shooting activities within or near the SSSI, on the grounds that these activities posed a significant risk of serious harm to protected habitats and species.

The Respondent appealed to the First-tier Tribunal (General Regulatory Chamber), which partially allowed the appeal by varying the stop notice to permit certain levels of activity and modifying the steps required to comply. The Appellant then appealed to the Upper Tribunal, challenging the First-tier Tribunal’s legal conclusions on multiple grounds including the applicability of the Habitats Directive and Regulations, the application of the precautionary principle, adequacy of reasons, and lawfulness of the steps required in the stop notice. The Respondent cross-appealed on the ground that the stop notice was a nullity.

The Upper Tribunal heard the appeal over several days and issued this decision setting aside the First-tier Tribunal’s decision and remitting the case for reconsideration with directions regarding interim activity levels and procedural composition.

Legal Issues Presented

Whether the Habitats Directive and the Habitats Regulations apply directly to the First-tier Tribunal in appeals against stop notices.
Whether the First-tier Tribunal correctly applied the precautionary principle in assessing the risk of serious harm to protected sites.
Whether the reasons provided by the Appellant for serving the stop notice were adequate.
Whether the steps required by the stop notice, specifically the requirement to obtain the Appellant's consent or agreement, were lawful and reasonable.
Whether the First-tier Tribunal gave adequate reasons for its decision.
Whether the stop notice was a nullity due to defects in specifying lawful steps.

Arguments of the Parties

Appellant's Arguments

The First-tier Tribunal erred in law by holding that the Habitats Directive and Regulations did not bind it and by failing to apply the precautionary principle correctly.
The stop notice was lawful and properly issued, with adequate reasons and appropriate steps requiring the Respondent to obtain statutory consent to remove or reduce harm.
The First-tier Tribunal wrongly removed prohibitions on certain activities (e.g., partridge releases and shooting) without sufficient factual findings or legal basis.
The First-tier Tribunal’s decision to vary the steps required in the stop notice was unlawful because it deprived the stop notice of effectiveness and due process.
The stop notice was not a nullity, and the First-tier Tribunal had the power to amend defective notices rather than void them.
Pending reconsideration, the Respondent should be restricted to previously consented or agreed levels of activity to protect the site.

Respondent's Arguments

The First-tier Tribunal was correct in its approach, including its non-application of the Habitats Regulations to itself.
The precautionary principle was applied appropriately, and the evidence did not support prohibiting certain activities.
The steps requiring consent were unlawful and unfair, effectively placing the Respondent in a position of indefinite uncertainty without due process.
The stop notice was a nullity due to defects in specifying lawful steps and should be set aside entirely.
Pending reconsideration, the stop notice as varied by the First-tier Tribunal should continue to govern the interim position, allowing the Respondent to carry out activities without the original notice’s prohibitions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Forager Limited v Natural England [2017] UKUT 0148 (AAC)	Approach to stop notice appeals and amendment of defective notices	The Upper Tribunal followed Forager in allowing amendment of stop notices rather than declaring them nullities.
R (Hope and Glory Public House Ltd) v City of Westminster Magistrates' Court [2011] EWCA Civ 31	Weight to be given to original decision-maker's reasons on appeal	The First-tier Tribunal was to give careful attention to original reasons but exercise its own judgment on the evidence.
BT Fleet Ltd v McKenna [2005] EWHC 387 (Admin)	Requirement for clarity and fairness in enforcement notices	The Upper Tribunal applied this standard in assessing the adequacy of reasons in the stop notice.
R (Johnson) v Professional Conduct Committee of the Nursing and Midwifery Council [2008] EWHC 885 (Admin)	Requirement for sufficient particularity in allegations for fair notice	Analogous principles applied to the clarity of the stop notice’s grounds.
Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Case C-127/02) [2004] E.C.R. I-7405	Interpretation of Article 6(3) Habitats Directive and integration of precautionary principle	Guided the court’s analysis of the tribunal’s role and application of the precautionary principle.
R (Akester) v Department for Environment, Food and Rural Affairs [2010] EWHC 2323 (Admin)	Definition of plans or projects under Habitats Directive	Supported the view that the tribunal’s role differs from that of a competent authority.
Cooperatie Mobilisation for the Environment UA v College van gedeputeerde staten van Limburg and Gelderland (Joined Cases C-293/17 and C-294/17)	Stringent requirements for appropriate assessment under Article 6(3)	Supported the court’s finding that the First-tier Tribunal is not suited to carrying out such assessments.
People Over Wind and another v Coillte Teoranta (Case C-323/17) [2018] PTSR 1668	Precautionary principle embedded in Article 6(3)	Reinforced that the precautionary principle allows preventive action without full scientific proof.
Queisser Pharma GmbH & Co KG v Bundesrepublik Deutschland (Case C-282/15)	Limits on hypothetical considerations in applying precautionary principle	Guided the tribunal’s assessment of evidence and risk in this case.
R (Mynnydd y Gwynt Ltd) v Secretary of State for Business Energy and Industrial Strategy [2018] EWCA Civ 231	Clarification of the "likely to have a significant effect" test under Habitats Directive	Supported the interpretation of risk threshold relevant to stop notice decisions.
Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377	Duty to give reasons in judicial decisions	Provided framework for assessing adequacy of First-tier Tribunal’s reasons.
English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605	Clarification of the duty to give reasons and appellate review	Informed the court’s approach to reviewing the First-tier Tribunal’s reasoning.
East Riding County Council v Park Estate (Bridlington) Ltd [1957] AC 223	Validity and clarity requirements for enforcement notices	Referenced in relation to the adequacy and validity of the stop notice.
Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196	Nullity of enforcement notices failing statutory requirements	Considered and distinguished in relation to stop notice nullity arguments.
Koumis v Secretary of State for Communities and Local Government [2014] EWCA Civ 1723	Modern approach limiting nullity to defects apparent on the face of notices	Applied to reject a broad nullity approach to stop notices.
Davenport v City of Westminster [2011] EWCA Civ 458	Modern public law approach to invalidity and nullity	Supported the court’s preference for invalidity over nullity in stop notice context.
Information Commissioner v Malnick [2018] UKUT 72 (AAC)	Limits on nullity and approach to errors in administrative decisions	Supported the court’s approach to the stop notice’s validity and amendment powers.
Kaur v Secretary of State for the Environment (1991) 61 P&CR 249	Uncertainty in enforcement notices	Distinguished on the basis that the stop notice had a clear statutory procedure for appeal and determination.
Payne v National Assembly for Wales [2006] EWHC 597 (Admin)	Uncertainty and nullity in enforcement notices	Distinguished as relating to planning enforcement notices without clear procedures.

Court's Reasoning and Analysis

The Upper Tribunal undertook a detailed legal and factual analysis addressing each ground of appeal and the cross-appeal. Its key findings include:

Applicability of the Habitats Directive and Regulations: The Tribunal concluded that the First-tier Tribunal is not a “competent authority” under the Habitats Regulations and thus is not bound to apply Article 6(3) or Regulation 63 directly. The Tribunal reasoned that the First-tier Tribunal’s judicial role is incompatible with the administrative and scientific assessment functions required of a competent authority. The Tribunal rejected the analogy with planning inspectors and agreed with the position that the First-tier Tribunal must give due respect to the regulator’s decision but is not itself bound by the full requirements of the Directive and Regulations.
Precautionary Principle: The Tribunal confirmed that the precautionary principle applies to the Appellant’s functions and that the First-tier Tribunal was bound to apply it in deciding whether there was a significant risk of serious harm. The Tribunal emphasized the principle’s anticipatory nature and that absence of full scientific certainty does not preclude protective action. It found that the First-tier Tribunal failed in substance to apply the precautionary principle correctly, particularly by requiring evidence of actual harm rather than a significant risk, and inadequately explaining its reasoning.
Adequacy of Reasons: The Tribunal found that the original stop notice was insufficiently precise and clear to provide fair notice of the grounds on which it was served, failing the standard of clarity required for enforcement notices. However, it held that the First-tier Tribunal applied an unjustifiably high standard and wrongly refused to consider prior correspondence and information exchanged before service. The Tribunal concluded that the stop notice was unreasonable in failing to specify its grounds with sufficient clarity.
Lawfulness of Steps Required: The Tribunal rejected the First-tier Tribunal’s conclusion that requiring the Respondent to obtain the Appellant’s statutory consent or agreement as a step was unlawful or unreasonable. It held that such a requirement is a lawful step to remove or reduce harm, consistent with statutory provisions, and that the Respondent’s right of appeal against refusal or non-determination of consent applications provides procedural fairness. The Tribunal also rejected arguments that the steps were uncertain, finding that statutory procedures and appeal rights provided clarity and safeguards.
Specific Activities: The Tribunal analyzed the evidence on partridge releases and shooting activities. It found that the First-tier Tribunal failed to make necessary factual findings or explain why it removed prohibitions on partridge releases despite evidence indicating a risk of harm and expert recommendations for restrictions. Similarly, the Tribunal found the First-tier Tribunal’s removal of prohibitions on shooting was unsupported by reasoned analysis and failed to properly apply the precautionary principle given the acknowledged risks.
Nullity Argument: The Tribunal dismissed the cross-appeal that the stop notice was a nullity due to defective steps. It followed precedent holding that stop notices may be invalid or unenforceable but not nullities if defects can be remedied by amendment, and that the First-tier Tribunal has power to amend notices. The Tribunal emphasized a modern public law approach that disfavors nullity except in rare, gross cases.
Disposal and Interim Measures: The Tribunal set aside the First-tier Tribunal’s decision and remitted the appeal for reconsideration by a differently constituted tribunal including members with environmental expertise. It directed that the original stop notice be reinstated but varied pending reconsideration to permit the Respondent to carry out activities at levels previously agreed or consented to by the Appellant, including limits on pheasant and partridge releases, shooting days, and vehicle use. The Tribunal rejected the Respondent’s submissions that the varied stop notice should govern the interim position or that the original stop notice should be suspended. It found that only the First-tier Tribunal has power to vary or suspend the stop notice pending appeal and that the Upper Tribunal’s power is limited to setting aside and remittal with directions.

Holding and Implications

The Upper Tribunal ALLOWED the Appellant's appeal and DISMISSED the Respondent's cross-appeal.

The decision of the First-tier Tribunal is set aside and the case is remitted to the First-tier Tribunal for reconsideration by a judge and one or two members with environmental expertise, who were not involved in the previous decision.

Pending the reconsideration, the original stop notice is reinstated but must be varied by the First-tier Tribunal to permit the Respondent to carry out certain specified activities at previously agreed or consented sustainable levels, including:

Release of no more than 3,060 pheasants on the SSSI per calendar year;
Release of no more than 2,000 partridges within 500 metres of the SSSI per calendar year;
Shooting activities on no more than 24 days per shooting season on the SSSI;
Use of vehicles on the SSSI for shooting activities on no more than 24 days per shooting season, restricted to existing tracks and purposes related to gamebird welfare and pest control.

This decision clarifies the limited role of the First-tier Tribunal in relation to the Habitats Directive and Regulations, emphasizes the proper application of the precautionary principle in environmental enforcement, and confirms the lawfulness of requiring statutory consent as a step in stop notices. It also confirms the power of the First-tier Tribunal to amend defective stop notices rather than declaring them nullities. No new precedent is established beyond the application of existing principles to the facts of this case.