A couple of weeks ago, the High Court threw out the Moorland Association’s legal challenge against Defra’s new burning regulations, which further restrict the areas of peatland that can be burned (see earlier blog here).
I said in that blog that I’d discuss the case further once documents had been obtained from the court. I’m still waiting for those documents, but in the meantime, for those interested in the specifics of the case, here is a very technical legal summary of the case, published on 28 January 2026 by Westlaw, which is an online research service used by legal professionals (many thanks to the blog reader who provided the link).
Case Digest
R. (on the application of The Moorland Association) v Secretary of State for Environment, Food and Rural Affairs [2026] 1 WLUK 481
Summary
(EXTEMPORE) Owners and managers of peatlands unsuccessfully challenged regulations extending the scope of a licencing regime for burning heather and grass on peatland. Firefighters’ concerns regarding the risk of wildfire had been adequately considered and the regulations pursued legitimate aims in terms of climate change and biodiversity.
Abstract
The claimant sought permission to apply for judicial review of the Heather and Grass etc. Burning (England) (Amendment) Regulations 2025.
The claimant organisation represented the owners and managers of peatlands. The Heather and Grass etc. Burning (England) Regulations 2021 had introduced a licensing regime for burning on peatlands, replacing a previous voluntary system.
In March 2025, the defendant secretary of state commenced a consultation on amending the 2021 Regulations to extend that regime to cover shallower peatlands and increase the area protected, and published a Natural England Evidence Review (NEER 155) on the effects of managed burning on upland peatland biodiversity, carbon balance and water quality, that set out a review of 102 studies. The consultation lasted six weeks.
Fire services and the National Fire Chiefs Council gave detailed responses raising concerns that the changes could lead to a risk of larger and more intense wildfires, resulting in increased risks to firefighters and the public. The defendant met with the fire chiefs and produced a consultation response which set out the defendant’s view that it was important to proceed with the proposals on the basis that the restoration of peatland to its naturally wet state would increase long-term wildfire resilience by reducing the fuel load in a sustainable manner.
The 2025 Regulations came into force in September 2025. Regulation 4(4)(c) of the 2021 Regulations had provided that the defendant could grant a licence where it was expedient or necessary to reduce the “risk” of wildfire: the 2025 Regulations changed the word “risk” to “impact”.
The claimant sought to challenge the 2025 Regulations, contending that they curtailed the ability to use controlled burning to mitigate the risk of wildfire, which was a long-standing land management practice, that the alternatives of cutting and wetting were not feasible, and that the risks raised by the firefighters had not properly been considered.
Held
Application refused.
Test for permission – The threshold of arguability for permission to apply was a relatively low one, Ramdass v Minister of Finance [2025] UKPC 4, [2025] 1 WLUK 349 applied.
Flawed consultation – It was not arguable that the consultation had failed to provide or consult on key evidential facts. NEER 155 [Ed: see here for earlier blog discussion on this Natural England report] had been published and it had been open to consultees to argue that it was wrong. There had been no obligation to consult on NEER 155 separately; that document had just formed part of the evidence base, R. (on the application of Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin), [2019] 1 W.L.R. 1649, [2018] 8 WLUK 16 considered. It was not arguable that the change in wording from “risk” to “impact” of wildfire was significant or prejudicial; if a licence lowered the risk of wildfire, then it necessarily lowered the impact.
Procedural irrationality – It was not arguable that the defendant had not made conscientious inquiries regarding wildfire risks where she had met with fire chiefs and given a considered response. While there had been divergent views about the fire risks and the advantages and disadvantages of a broader licencing regime, the views of the firefighters had been considered, Secretary of State for Education and Science v Tameside MBC [1977] A.C. 1014, [1976] 10 WLUK 91 followed.
Substantive irrationality – It was not arguable that the increase in the scope of the 2021 Regulations was Wednesbury irrational. That argument faced a high hurdle as the decision concerned a scientific and policy debate about relative benefits in a technical area. The defendant had had a rational justification for the regulations that had been set out in the consultation response and based on evidence.
ECHR Protocol 1 art.1 – There was no possibility of incompatibility with ECHR Protocol 1 art.1. The 2025 Regulations pursued legitimate aims in terms of climate change and biodiversity. The defendant had adequately considered the balance of risks. The regulations did not ban burning, but introduced a licensing regime; on the face of it that had been a fair and proportionate response. The implementation of the regime had been incremental.
ENDS
Having seen its application for judicial review refused by the High Court on every single ground, the Moorland Association (lobby group for grouse moor owners in England) has now announced it intends to appeal the court’s decision.
A different judge will now review the arguments of both the claimant (Moorland Association) and the defendant (Defra Secretary of State) and judge whether Mrs Justice Lieven’s refusal decision was reasonable based on the facts.
There’s no telling how long it will take for the appeal to be decided. It’s kind of pot luck on the availability of a judge and the time it takes that particular judge to write up a decision. It could be a matter of weeks, more likely several months, but could extend for over a year as we’ve seen with other environmental cases.
If permission is refused again, the legal challenge will fail. If permission is granted on appeal, then the legal challenge will proceed to a full substantive hearing at some point, but again, this is likely to be months into the future.
Raptor Persecution UK 