ba Cornerstone
020 7242 4986 or  0333 240 0591 London  |  Birmingham  |  Cardiff
Cases

Burning England’s “national rainforest”: High Court challenge to failures to protect large areas of blanket peat bog

01.12.2021

The UK's peatlands store around 3 billion tonnes of carbon, equivalent to all the carbon stored in the forests in the UK, Germany and France together. Blanket bog is also a globally rare habitat, which is protected because of its biodiversity importance. However, much of England's peat reserves are degraded and damaged, in part due to the practice of deliberate burning of vegetation on blanket bogs, a practice undertaken primarily to support the grouse shooting industry. DEFRA stated that there "is a consensus that burning of vegetation on blanket bog is damaging to peatland formation and habitat condition". Burning also releases carbon into the atmosphere and the Climate Change Committee has, since 2015, recommended the practice to be banned.

The Secretary of State for Food, Environment and Rural Affairs made the Heather and Grass etc. Burning (England) Regulations 2021 ("the Burning Regulations"), which came into force in May 2021. These Regulations introduce a ban on the burning of certain blanket bog without a license, as the Government recognised that by allowing repeated burning on blanket bog sites, it was not fulfilling its obligations under domestic habitat conservation regulations or international habitats law. Further, the Explanatory Memorandum to the Regulations describe them as "a crucial step in delivering the aims of the England Peat Strategy and to meet nature recovery and climate change mitigation and adaptation targets" and DEFRA announced the Regulations as protecting "England's 'national rainforests'".

However, only around 40% of the upland deep peat in England will be protected by the ban on unlicensed burning, because of two limitations: the Burning Regulations only apply (1) where the underlying peat is more than 40 centimetres deep, and (2) where that peat is in a specially designated Site of Special Scientific Interest which is also a Special Area of Conservation or a Special Protection Area.

Today, Wild Justice, a wildlife campaigning organisation, renews its application for permission to apply for judicial review of the decision to make the Burning Regulations. The claim challenges the lawfulness of the decision to impose the Burning Regulations containing the two limitations, arguing that:

1) No evidence, analysis or assessment informing the decision of the Secretary of State to impose the limitations has been provided. Without this evidence, and in light of the incongruence between the limited scope of the ban and the stated aims and objectives of the ban, the decision to impose the limitations was irrational.
2) The Burning Regulations fail to comply with the obligations under regulation 9 of the Habitats Regulations 2017.
3) Merely mentioning the general issue of climate change is not evidence of the decision-maker taking into account the need for urgent action in order to comply with the Secretary of State's obligations under the Climate Change Act 2008 or the UK's commitments under the Paris Agreement. Accordingly, the Secretary of State failed to take account of an obviously material consideration.

The renewal hearing will be heard virtually in the High Court before Lang J.

Estelle Dehon and David Wolfe QC represent the claimant, instructed by Leigh Day.