Why We Are Appealing the Judicial Review Decision

Andrew Gilruth
20 hours ago
3 min read

✅ KEY TAKEAWAY: The Moorland Association is appealing the High Court’s ruling to ensure government accountability and prove that wildfire safety risks were lawfully considered during the 2025 burning regulation decision-making process.

The Moorland Association has decided to apply for permission to appeal following the High Court’s refusal to allow our judicial review of the 2025 heather and grass burning regulations to proceed to a full hearing.

This decision has been taken carefully and on legal advice. It is not about asking the courts to overturn environmental policy, nor about challenging the objective of peatland protection.

The appeal is about whether the case should have been allowed to proceed, so that the Government’s decision-making process could be properly examined with evidence and disclosure.

What the case is - and is not - about

From the outset, the Association’s legal challenge has focused on process, not policy. The case does not ask the court to decide whether the regulations are right or wrong.

Instead, it raises a narrower but important question: whether wildfire risk (a matter of public safety) was lawfully and adequately considered when the regulations were developed.

During the consultation, statutory fire bodies, including the National Fire Chiefs Council and regional fire and rescue services, raised explicit concerns that further restricting preventative winter burning could increase fuel loads and the risk of larger, more severe wildfires. These warnings came from professionals responsible for managing wildfire response on the ground.

The Association’s concern has always been how those warnings were handled within government decision-making.

What happened in court?

The recent hearing was a permission hearing. At this stage, the court does not decide whether a claim will ultimately succeed. It decides only whether the claim is arguable and not defeated by a clear legal “knock-out blow”.

During the hearing, the court heard evidence that:

senior officials acknowledged wildfire concerns raised by fire authorities;
ministers were advised that those concerns would “require further engagement”;
a meeting took place with fire chiefs; and
engagement was also identified with the minister responsible for fire.

However, it was also accepted that there are no minutes or formal read-out of those discussions, either with fire chiefs or following engagement involving the fire minister.

The judge herself remarked that she was “mystified” as to why a ministerial meeting convened specifically to address wildfire risk appeared to have no documentary record.

That observation goes to the heart of the Association’s case: whether concerns about public safety were properly recorded, assessed and weighed before the regulations were finalised.

Despite this, permission to proceed was refused on all grounds.

Why the Board has decided to appeal

After reviewing the judgment and legal advice, the Board concluded that an appeal was justified for several reasons.

First - the court may have applied the wrong test at the permission stage. Rather than asking whether the challenge was arguable, the judgment appears to have resolved contested issues that would normally be examined only at a full hearing.

Second - the procedural irrationality in the handling of wildfire risk has never been tested with disclosure. Without seeing the underlying documents, it is impossible to know how fire service concerns, ministerial discussions and cross-government engagement were ultimately evaluated.

Third - not appealing would leave the refusal standing as authority that Defra’s handling of wildfire risk was legally adequate, despite the acknowledged absence of a clear evidential trail.

Fourth - the initial appeal stage is limited, paper-based, and involves capped and predictable costs. Importantly, applying for permission to appeal does not commit the Association to any further stages.

What happens next

The appeal process has three distinct stages:

Permission to appeal - decided on the papers alone. No new evidence is introduced. If permission is refused, the process ends.
Appeal hearing - only if permission is granted. This considers whether the refusal of permission was wrong in law.
Substantive hearing - only if the appeal succeeds and only if the Board decides to proceed. This is the first stage at which disclosure and evidence would be examined.

A strategic decision, not a short-term fix

This appeal will not change the current burning season, nor deliver immediate operational relief. It is a strategic decision about accountability, transparency and ensuring that public safety risks are properly addressed when land management policy is made.

As wildfire risk increases with hotter, drier conditions, decisions about fuel management in the uplands will have real consequences for communities, emergency services and the landscapes they protect. Ensuring those decisions are made lawfully, transparently and with full regard to risk is a matter of legitimate public interest.

We will continue to keep members informed as the process unfolds.