Moorland Association to appeal heather burning court defeat

High Court blocks judicial review

The Moorland Association is seeking an appeal in its legal battle over heather burning restrictions after the High Court blocked its case from proceeding.

The association had wanted to challenge Defra on how it decided to impose new restrictions on the controlled burning of heather in England back in September. Specifically, it questioned whether the department adequately considered wildfire risk when the regulations were written up.

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Permission hearing issues

But to bring a judicial review, the association first had to get the High Court’s permission, which it tried to do on 28 January. At the hearing, the High Court heard that officials did indeed acknowledge wildfire concerns raised by the National Fire Chiefs Council and regional fire and rescue services. Ministers were reportedly told these concerns would “require further engagement”, and meetings took place with fire chiefs and the fire minister.

However, there were no minutes or formal record of those discussions. Even the judge in the permission hearing said she was “mystified” as to why a ministerial meeting specifically about wildfire risk had no documentary record. Despite this, the judge refused the association’s request to proceed to a full judicial review hearing.

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Plans to appeal

The association now wants the Court of Appeal to overturn that decision and let the case proceed, arguing the judge made decisions on contested issues without allowing a full examination of the evidence.

Andrew Gilruth, chief executive of the Moorland Association, stated: “Without seeing the underlying documents, it is impossible to know how fire service concerns, ministerial discussions and cross-government engagement were ultimately evaluated.”

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Legal perspective

Stuart Farr, solicitor at Harrison Drury, told Shooting Times the time allotted for permission hearings is generally under an hour. “In matters involving complex and even highly technical issues, the time available to get all points across fully is highly constrained,” he said. 

However, Mr Farr noted there’s still hope for the association. “The court appears not to have decided the application was totally without merit. There may yet still be opportunities for appeal, although it may cause the scope of any future review to be narrowed further,” Mr Farr added.

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Potential outcomes

If the Court of Appeal agrees to look at the case again, it would examine whether the High Court was wrong to refuse a judicial review. Only if that succeeds would the case proceed to a full hearing where Government documents and evidence would be examined.

Mr Gilruth said the appeal “will not change the current burning season, nor deliver immediate operational relief”. He explained: “It is a strategic decision about accountability, transparency and ensuring that public safety risks are properly addressed when land management policy is made.

“As wildfire risk increases with hotter, drier conditions, decisions about fuel management in the uplands will have real consequences for communities, emergency services and the landscapes they protect. Ensuring those decisions are made lawfully, transparently and with full regard to risk is a matter of legitimate public interest.”