Campaigner loses High Court challenge over Natural England decision on tree felling in wood affected by HS2

A High Court judge has dismissed as unarguable all the grounds advanced by environmental activist Mark Keir against Natural England’s decision to allow the felling of part of a wood for works on the HS2 rail project.

The case of Keir, R (On the Application Of) v Natural England [2021] EWHC 1059 (Admin) concerned a section of the route that crossed 0.7 hectares of the ancient Jones Hill Wood near Wendover.

A number of bat species live there and are protected under regulation 42 of and Schedule 2 to the Conservation of Habitats and Species Regulations 2017.

The regulations though allow for derogation licences including for “imperative reasons of overriding public-interest, including those of a social or economic nature”.

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HS2 applied to fell 19 trees to Natural England, which ultimately agreed when it received a revised application.

Mr Keir is a member of Earth Protectors, whose members had camped in the area where felling was planned until HS2 regained possession in October 2020.

Earth Protectors raised concerns including whether there was evidence that bat boxes could provide compensation for the loss of a barbastelle breeding site.

“[Its] letter did not indicate any of the other grounds of challenge now pursued,” Mr Justice Holgate said. “No pre-action protocol letter was sent.”

Earth Protectors though served a claim on Natural England accompanied by expert reports from two ecologists, and by an urgent application in form N463.

It sought interim relief including an order for a rolled up hearing, an injunction prohibiting the works under the licence and an order suspending the licence.

This came before Lang J on 16 April 202 who granted an injunction restraining the works until the determination of the claim or a future order.

Holgate J said: “It became common ground between the parties at the hearing that (a) this went beyond the scope of the order that had been sought and (b) that there was no legal justification for any interim order in the present claim to go beyond restraining works or activities pursuant to the licence which the claimant seeks to impugn.”

Mr Kier advanced four grounds, a fifth not being pursued.

These were that Natural England failed to apply the correct approach under regulation 55(9)(b) of the 2017 Regulations as it did not ask itself whether the proposed works would be detrimental to the barbastelle bats on the basis of the best available scientific information.

He also argued that Natural England failed to give reasons justifying a departure from its policy or failed to have regard to obviously material considerations and that it failed to give reasons justifying inconsistency with its refusal of the initial derogation application.

The final ground stated that Natural England acted irrationally by failing to acquaint itself with sufficient information.

Holgate J said nothing in the first ground “reveals any arguable legal error or failure to apply the precautionary principle”.

He added: “The criticisms made of NE fail to read the documentation as a whole. The claimant's case involved highly selective filleting of the material and an excessively legalistic or forensic approach.”

It was, he said, “impossible to argue" that Natural England failed to have regard to any aspect of the relevant policy

The idea that these policies were inapplicable to situations described as “novel or complex” was also unarguable, the judge said as no question of law arose and any dispute was a matter of expert judgment.

Holgate J said: “There is also nothing in the complaint that there is no adequate scientific evidence to support the use of bat boxes as mitigation for the loss of maternity roosts for barbastelle bats, particularly where there is disruption caused by the felling works.

“Natural England has relied upon scientific papers [and its] judgment is that this mitigation is also appropriate in this case where felling is to take place.”

Disputes between experts on this were not a legitimate ground for judicial review. The contention of irrationality did not “arguably surmount the high hurdle which applies to challenges of this nature, particularly in the field of specialist scientific expertise”.

Holgate J concluded: “I have no hesitation in concluding that the balance of convenience comes down firmly in favour of the injunction being discharged.”

Mark Smulian

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