Wild Justice v Dartmoor Commoners' Council

A statutory regulator given a power to control overstocking is not necessarily required to exercise that power whenever overstocking is alleged. The regulator must, however, periodically assess the level of stocking which the land can properly accommodate. That assessment must be evidence-based and reasonably fit for purpose; reliance solely on anecdotal knowledge is insufficient to discharge the duty of reasonable inquiry. The regulator retains discretion over the method and frequency of assessment. Statutory environmental duties are engaged by the exercise, or unlawful failure to exercise, a relevant function. A court should not prescribe the future exercise of a discretionary regulatory power. A body may take account of the interests of those it regulates where that is consistent with its statutory purpose.

Wild Justice brought a judicial review claim against the Dartmoor Commoners’ Council concerning the Council’s statutory responsibilities for regulating grazing on Dartmoor commons. The claim challenged alleged failures under the Dartmoor Commons Act 1985, the Wildlife and Countryside Act 1981 and the Conservation of Habitats and Species Regulations 2017.

The claimant alleged failures to control overstocking, assess proper stocking levels, have regard to conservation duties, comply with environmental duties, and avoid improper purpose, apparent bias and fettering of discretion. The Council subsequently considered whether to issue limitation notices and resolved not to do so. The central issues were whether the Council had unlawfully failed to perform its statutory assessment function and whether its decisions and approach were otherwise unlawful.

1. Ground (1)—limitation notices. Section 5(1)(a)(ii) of the Dartmoor Commons Act 1985 required the Council to make regulations for the purpose of ensuring that the commons were not overstocked. Regulation 9 of the 1990 Regulations discharged that duty by providing a mechanism for limitation notices. It did not require a notice whenever evidence of overstocking existed. The Council retained a case-specific discretion to decide whether issuing a notice was expedient, having regard to the statutory purpose and its functions under section 4. The claimant had not identified sufficient evidence concerning a particular unit of commons to require the Council to consider issuing a notice. Ground (1) was rejected: [140]-[156].
2. Ground (2)—assessment. Periodic assessment of the number of animals which could properly be depastured was fundamental to the Council’s core regulatory functions. The assessment required quantitative and qualitative analysis, including livestock numbers, grazing rights, areas, seasonal variation, the physical capacity of the commons and environmental effects. The Act prescribed neither the method nor frequency, but the method adopted had to be reasonably fit for purpose and satisfy the Tameside duty of reasonable inquiry. Sole reliance on members’ anecdotal knowledge was inadequate. Ground (2) succeeded: [162]-[174].
3. Environmental duties. The duties under section 4(1) of the 1985 Act, section 28G of the Wildlife and Countryside Act 1981 and regulation 9(3) of the 2017 Regulations depended upon the exercise of a relevant function. Since the alleged failure to consider limitation notices was not unlawful, the claimant had not established that those duties were engaged in the manner alleged. Grounds (3), (4) and (5) were rejected, while the wider questions were left for a case in which they arose on the facts: [175]-[191].
4. Remaining grounds. The Council’s consideration of commoners’ interests was consistent with the statutory purpose and did not establish improper purpose or ultra vires action. The resolutions were not vitiated by apparent bias, since they represented an open-minded response to a claim concerning continuing inaction. The Council had not unlawfully fettered its discretion: [192]-[217].
5. The claim succeeded on ground (2). The remaining grounds were dismissed. Consequential relief was to be determined after submissions: [218].