MA Judicial Review: An Update for Members

The Moorland Association, together with three member estates, has submitted its Claim for Judicial Review against the Secretary of State for Environment, Food and Rural Affairs.

This follows the Government’s decision to introduce the Heather and Grass etc. Burning (England) (Amendment) Regulations 2025, which came into force on 30 September.

This blog explains why we have taken this step, the grounds of our claim and what happens next. The legal arguments referred to here were previously set out in our Pre-Action Protocol (PAP) letter, published by the MA on in October.

1. Why the MA has taken legal action

The 2025 Regulations significantly tighten restrictions on controlled burning, including:

• Extending the prohibition to all Less Favoured Areas

• Lowering the peat-depth threshold from 40cm to 30cm

• Removing the licensing ground for sites that cannot be mechanically cut

• Changing the wildfire licensing ground from managing “risk” to managing “impact”, a shift never consulted upon

These changes were made:

• Without proper consultation

• Without key evidence being provided to stakeholders

• Without any meaningful consideration of new wildfire science

• With application processes and guidance only released on the day the Regulations took effect.

Together, these failures mean the new rules are already unworkable for many estates, and risk worsening wildfire dangers across the uplands.

2. The Grounds of the Claim

The legal challenge sets out four principal grounds, exactly as outlined in the PAP letter.

Ground 1. Unlawful consultation

Our PAP letter identified five independent ways in which the consultation process fell short of the standards required by law:

a) Consultation on different proposals than those ultimately introduced

Several major changes introduced in the 2025 Regulations were never consulted on, including the shift from wildfire “risk” to wildfire “impact”.

b) Consultation documents lacked essential information

Defra did not publish:

• detailed licensing guidance

• wildfire-management templates

• any explanation of the new wildfire-impact test

until after the Regulations had been laid.

c) Inadequate time for meaningful responses

The consultation ran for just 8 weeks despite covering complex and technical issues.

d) Failure to conscientiously consider information

The MA submitted detailed wildfire evidence, including the major new UK study by Ivison et al. (2025), demonstrating that extreme heat causes all upland fuels (live heather, dead stems and organic soils) to dry simultaneously, creating dangerous fire conditions. Despite repeated requests that Ministers be briefed, there is no indication this evidence was considered.

e) Procedural unfairness

Stakeholders were told that licence applications must typically be submitted 12 weeks before burning, but Defra did not release the application form until the very day the regime took effect.

Ground 2. Failure to consider wildfire risk

The PAP letter sets out how Defra failed to evaluate wildfire risk in any meaningful way when designing the Regulations, despite:

• the Government’s own wildfire frameworks and risk assessments

• warnings from the National Fire Chiefs Council

• evidence of rising fire danger under UKCP18 climate projections

• new peer-reviewed UK research showing extreme heatwaves can overwhelm natural fuel-moisture “buffers”

The MA argues that limiting fuel-management tools without assessing wildfire implications is a clear error of approach.

Ground 3. Irrationality

The PAP letter explains why the decision is irrational, including that:

• Defra tightened burning restrictions while acknowledging that rewetting alone does not prevent peat or Sphagnum from drying and burning after prolonged drought

• Alternatives such as cutting are often unavailable, unsafe or ecologically damaging in upland terrain

• The unexplained change from “risk” to “impact” undermines the stated purpose of wildfire prevention

Ground 4. Failure to comply with statutory duties

The claim argues that Defra failed to have proper regard to:

• climate-adaptation responsibilities (including wildfire resilience)

• public-health considerations relating to PM₂.₅ smoke from wildfires

• Fire & Rescue Service operational concerns

• consistency with the National Adaptation Programme

• the Government’s own policies on wildfire mitigation

All of these duties remain central to our claim.

3. What happens next?

Now that the Claim has been issued:

1. The Government must now respond to the Claim and explain the basis it will seek to defend its position (or perhaps not at all).

2. Then a Court will decide whether the Claim proceeds to a full hearing. This “permission stage” is expected within the coming weeks.

3. If permission is granted, the Court will list the Claim for a substantive hearing. This will likely be a one or two-day hearing in the coming months.

4. The Government will be required to disclose relevant internal documents. This includes communications that explain how decisions were made, what evidence was considered, and why key changes (such as the wildfire-impact test) were introduced.

5. The Court will then issue a judgment, which may:

• quash all or part of the 2025 Regulations,

• require Defra to reconsider them lawfully, or

• issue declarations as to the legality of the regime.

4. What members should do now

The 2025 Regulations remain in force unless the Court sets them aside. Members should continue to apply for licences where required and you can contact us for help at rbeeson@moorlandassociation.org.

Please remember we are also actively collecting evidence on:

• delays

• refusals

• safety implications

• wildfire-risk concerns

• practical impacts on estates

You can submit your evidence here.

Please contact the MA if you have information that could support the case by emailing rbeeson@moorlandassociation.org.

5. Our commitment

The Moorland Association supports peatland restoration and responsible, evidence-based management. But new policies must be:

• lawful

• workable

• and scientifically informed

We feel the 2025 Regulations fail on all three of these counts.

By bringing this Judicial Review, the MA is seeking a framework that protects peatland while safeguarding communities, emergency services and the landscapes we are entrusted to manage.

We will continue to update members as the case progresses.

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