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The headline from the recent High Court decision in the case of Wild Justice v Dartmoor Commoners Council (“Council“) is that the Council failed in its fundamental duty to assess the proper number of livestock that should be allowed to graze the common land on Dartmoor.
The High Court determined that reliance on anecdotal evidence as to stocking levels was not a legally sufficient basis for performance of such a core statutory function. Wild Justice’s chief complaint was that the common land was overgrazed but under-grazing is equally problematic and the court agreed that the grazing capacity of the commons, viewed wholly and in part, had to be properly assessed in terms of quality and quantity.
Underlying statutes
Dartmoor is a unique landscape and this is perhaps why it is the only commoners association to be governed by its own statute, the Dartmoor Commons Act 1985.There are other statutory commoners organisations created by the Commons Act 2006, such as Brendon Commons on Exmoor and Bodmin Moor. The same statutory duty to assess appropriate grazing levels will apply to those protected landscapes as well.
Wider application for competent authority status
Of wider application though is the confirmation that the Council (along with Brendon and Bodmin) is a competent authority for the purposes of both the Wildlife and Countryside Act 1981 and the Conservation of Habitats and Species Regulations 2017.
This will have implications for the evolution of such protected landscapes in the context of Landscape Recovery and other environmental schemes. In exercising their functions, the statutory commoners councils will have to have regard to the aims of the Wildlife and Countryside Act 1981(“1981 Act“) and the EU Habitats Directive (92/42EEC).
SSSI statutory obligations
In this case, the court found that a failure to issue grazing limitation notices was not unlawful and so the Council had not breached their duties in this regard. However, future decision making will be influenced by the need to comply with the 1981 Act on Sites of Special Scientific Interest (“SSSI“), to:
take reasonable steps, consistent with the proper exercise of the authority’s functions, to further the conservation and enhancement of the flora, fauna or geological or physiographical features by reason of which the site is of special scientific interest; and
have regard to the requirements of the relevant EU habitat and wild bird directives in respect of Special Areas of Conservation (“SAC.“)
Greater pressure on stocking levels
This may result in even greater pressure on stocking levels in such protected landscapes as Landscape Recovery and other catchment scale schemes are rolled out. Many will argue that these safeguards are already in place through the oversight of Natural England but there is now a much more direct means of enforcement, following the court’s confirmation of the statutory duty to properly assess grazing intensity.
Squeeze on commoner’s funding
Judgment was issued in this case in the same week as DEFRA announced that commoners would not be able to claim payments under the Sustainable Farming Initiative or Countryside Stewardship due to the RPA’s computer system being unable to cope with applications across such large land parcels. This will see reduced levels of public funding for some of the most important landscapes, unless Landscape Recovery schemes can help reduce the impact of such cuts in support.
Historically, it has been problematic getting wholesale buy in across an entire common, when it comes to environmental schemes; a combination of an overriding statutory duty and reduced public funding may in the future encourage a more collaborative approach.