The Moorland Association is seeking permission to appeal following a High Court decision that blocked its legal challenge against Defra over restrictions on the controlled burning of heather in England.
The association had aimed to question whether the department adequately considered wildfire risk when drafting the regulations introduced in September. To pursue a judicial review, it first needed the High Court’s approval, which was refused after a hearing on 28 January.
During proceedings, the court heard that officials had acknowledged wildfire concerns raised by the National Fire Chiefs Council and regional fire and rescue services. Ministers were reportedly advised that the issue would “require further engagement”, and meetings subsequently took place with fire chiefs and the fire minister.
However, no minutes or formal records of those discussions were available. The judge overseeing the permission hearing said she was “mystified” that a ministerial meeting focused specifically on wildfire risk had no documentary record.
Despite this, the court declined the association’s request to move forward with a full judicial review. The Moorland Association is now asking the Court of Appeal to overturn that decision, arguing that contested issues were determined without a comprehensive examination of the evidence.
Andrew Gilruth, chief executive of the Moorland Association, said: “Without seeing the underlying documents, it is impossible to know how fire service concerns, ministerial discussions and cross-government engagement were ultimately evaluated.”
Stuart Farr, solicitor at Harrison Drury, told our sister publication, Shooting Times that permission hearings are typically allocated less than 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.
Farr added that the ruling does not necessarily end the process. “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.”
If the Court of Appeal agrees to reconsider the case, it would assess whether the High Court was wrong to refuse a judicial review. Only if that challenge succeeds would the case proceed to a full hearing where government documents and supporting evidence would be examined.
Gilruth noted that the appeal “will not change the current burning season, nor deliver immediate operational relief”. He added: “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.”