New MA Guidance: Appealing an SSSI Consent Decision
Quick summary
Members can appeal to the Secretary of State if Natural England refuses or restricts SSSI consent.
Appeal within two months of Natural England's notice; any extension must be agreed in writing first.
You do not necessarily need a solicitor, or every piece of evidence, to lodge an appeal.
The Secretary of State also weighs agriculture, forestry and rural economic interests, so wider evidence can matter.
The Moorland Association has published new practical guidance for members on what to do if Natural England refuses consent for an operation on a Site of Special Scientific Interest (SSSI), imposes conditions which an owner or occupier considers unacceptable, or changes or withdraws an existing consent.
A refusal or restrictive consent is not necessarily the end of the process. SSSI owners and occupiers have a statutory right of appeal to the Secretary of State. Our new guide explains how that process works, the deadlines that apply and the evidence members should consider assembling.
Do not miss the two-month deadline
The most important point is the deadline. An appeal must normally be made within two months of the date of Natural England's notice. Where Natural England has not made a decision within four months of receiving an application for consent, that absence of a decision can be treated as a refusal and an appeal can be made within the following two months.
Discussions with Natural England do not automatically stop the clock. It may be possible to agree an extension while discussions continue, but this must be agreed with Natural England in writing before the original appeal period expires. Members should therefore record the date of any decision immediately and calculate the appeal deadline at the outset.
You do not necessarily need a solicitor
Members can make and conduct an SSSI appeal themselves. There is no requirement to appoint a solicitor or other professional representative.
For a relatively straightforward case, particularly one proceeding through written representations, an owner or occupier may be able to prepare the grounds, assemble the evidence and submit the appeal directly to Defra. More complex cases may benefit from specialist advice, but depending on the issue the most useful assistance may be from an ecologist, land agent or other technical expert rather than a solicitor.
Protect the deadline even if all the evidence is not yet ready
You do not necessarily need every expert report or piece of supporting evidence completed before lodging an appeal. What is important is that the initial appeal identifies all the main grounds on which Natural England's decision is challenged. Further evidence and, where required, a fuller statement of case can follow during the appeal process.
A statement of case develops the grounds already identified, explains the arguments in greater detail and brings together the evidence relied upon. If the original appeal already explains the objections fully, a separate statement of case may not be necessary. Where one is required, it must be submitted within six weeks of the official appeal start date.
The important practical distinction is that members should not allow the two-month appeal deadline to expire simply because a survey, expert report or other piece of evidence is still being prepared.
What evidence might matter?
An appeal should engage directly with the reasons Natural England has given for its decision.
Depending on the case, relevant material might include photographs and maps, habitat or species surveys, management plans, previous consents, correspondence with Natural England, expert evidence and information about how the proposed operation would actually be carried out. Evidence about alternative methods or conditions capable of addressing Natural England's concerns may also be important.
A useful way of approaching the evidence is to ask, for each ground of appeal:
What has Natural England concluded?
Why do you consider that conclusion wrong or insufficiently supported?
What evidence supports your position?
An appeal is not confined simply to ecology
When deciding an appeal, the Secretary of State considers the Planning Inspector's report and recommendations alongside a number of statutory duties.
These include duties concerning the conservation and enhancement of SSSIs and the natural beauty and amenity of the countryside, but also the duty to have regard to the needs of agriculture and forestry and to the economic and social interests of rural areas.
Where European site protections apply, the relevant Habitats Regulations requirements must also be met.
Members should therefore not automatically assume that evidence about the wider consequences of a decision is outside the scope of an appeal. Depending on the circumstances, this could include evidence concerning the practical management of a holding, farming or forestry operations, employment, management costs or wider rural economic and social effects.
These considerations do not override the statutory nature-conservation requirements, but they can form part of the wider evidence relevant to the appeal.
Three appeal procedures
Appeals can proceed in one of three ways:
(1) written representations
(2) a hearing or
(3) an inquiry
Written representations are normally the simplest route. A hearing allows the issues to be explored orally before an inspector, while an inquiry is the most formal procedure and may be appropriate for particularly complex cases or those requiring cross-examination of witnesses. The appellant can state a preference, although the Secretary of State ultimately determines the appropriate procedure.
Contact the MA early
Members considering an appeal are encouraged to contact the Moorland Association at an early stage on info@moorlandassociation.org. Similar regulatory and evidential issues can arise on different SSSIs. The Association may therefore be able to help identify relevant experience, evidence or previous decisions before grounds of appeal are finalised.
The new MA Practical Guide to Appeals on SSSI Consent Decisions brings the process together in one place, including the appeal deadline, grounds of appeal, statements of case, evidence, hearings and inquiries, costs and practical steps for members.
For the Government's full guidance on SSSI consent appeals, see: GOV.UK – Sites of special scientific interest: appeal a refusal or change of consent.
The official appeal form, which can be used when submitting an appeal to Defra, is available here: SSSI consent appeal form (PDF).
Members facing an SSSI consent decision should act promptly: establish the appeal deadline, retain the relevant records and contact the MA if assistance may be useful.
