Wildfire Risk Does Not Wait: Three Appeals and an Opportunity to Fix Section 25

14 minutes ago

8 min read

Quick summary

Three Peak District decisions face appeal, while Natural England's wider review offers a chance to fix urgent applications.
The cases concern Section 25 of the CROW Act, allowing access restrictions to prevent fire in exceptional circumstances.
The MA accepts the Fire Severity Index matters but asks whether site-specific evidence can count below Level 5.
The cases also raise questions about speed, evidence and whether the process can prevent wildfires in time.

What is Section 25?

Large areas of moorland in England are subject to a public right of access created by the Countryside and Rights of Way Act 2000, usually known as the CROW Act. The Act also recognises that there may occasionally be circumstances in which that access needs to be temporarily restricted.

Section 25 allows the relevant authority to restrict CROW access where it is satisfied that, because of exceptional weather conditions or an exceptional change in the condition of the land, a restriction is necessary for fire prevention.

As we have explained previously in our guidance note, inside a National Park, the relevant authority will normally be the National Park Authority. Elsewhere it will generally be Natural England, with separate arrangements for some dedicated woodland. A Section 25 direction restricts the wider CROW right of access, it does not automatically close public footpaths, bridleways or other public highways crossing the land.

It is fundamentally a preventative power. Its value lies in being capable of use before somebody accidentally or deliberately starts a fire.

What happened in the Peak District?

During the exceptionally dry conditions this summer, owners and managers of a number of Peak District moors sought temporary restrictions because of concerns about wildfire. Three applications received negative decisions from the Peak District National Park Authority (PDNPA).

All three have now been appealed to the Planning Inspectorate. This is the government agency responsible for handling statutory appeals of this kind. The MA is assisting with these cases because they raise questions that go considerably wider than the circumstances on individual moors.

One point is now clear: landowners can apply

One useful point has emerged from this summer's cases. Owners and others with a qualifying legal interest in CROW access land can make an individual application for a fire-prevention restriction under Section 25. That route is available even where an existing outline fire direction has not been activated.

The Peak District cases have now demonstrated that such applications can be received and determined. That is an important clarification for land managers.

The MA believes Natural England and every National Park Authority responsible for CROW access land should now make that route completely clear. Their websites and operational guidance should explain, in simple terms, who can apply, where an application should be sent, what evidence and mapping are required, who is qualified to provide that evidence, how an urgent or out-of-hours application will be handled and how quickly a decision can be expected.

An emergency fire-prevention mechanism should not require landowners to discover the procedure while a wildfire emergency is already developing.

The central question: what role does Fire Severity Index (FSI) Level 5 play?

The Index runs from level 1 to 5, with 5 representing exceptional conditions. It incorporates rainfall, drought, wind, temperature and humidity and therefore takes account of weather-driven factors relevant to vegetation and fuel dryness.

The MA is not arguing that the FSI should be ignored but we are asking if level 5 should be treated as the exclusive gateway to a restriction. That matters because Parliament did not refer only to exceptional weather. Section 25 separately refers to:

“any exceptional change in the condition of the land”.

So the question is straightforward: Is FSI Level 5 one way to evidence exceptional conditions, or is it the only way?

If credible site-specific evidence indicates that conditions on a particular area of land have become exceptional, what role can that evidence play where the FSI has not reached Level 5? That is the central issue raised by the appeals.

What does the history tell us?

Members have kindly been sharing their historic records from when the CROW fire-prevention system was being developed, and we have therefore been examining the original ADAS, Met Office and government work. That history does not answer every question about how the modern system should operate, but it is relevant.

The original work recognised that a Section 25 restriction could follow an application by a land manager as well as action initiated by the relevant authority. It also considered specifically what Parliament meant by an “exceptional change in the condition of the land”, concluding that this could include circumstances in which soil and vegetation remained exceptionally dry after the exceptional weather itself had passed.

The parliamentary history is also revealing. During the House of Lords debate on 7 November 2000, Lord McIntosh of Haringey, speaking for the Government, said it would be necessary to consider the weather:

“in conjunction with the condition of the land and the vegetation”.

He went on to say that the early-warning system being developed by the Countryside Agency and Met Office would:

“take account of weather and ground conditions”

and would be similar to the system then operating successfully in the Peak District.

The contemporary Peak District arrangements reflected that approach. Met Office information was supplemented by local assessment, including ranger measurements of soil moisture and observations of surface vegetation and peat conditions before the Fire Advisory Panel considered what action was appropriate.

The MA is not suggesting that the PDNPA should recreate a ground-measurement system designed more than two decades ago. The modern FSI has developed considerably. The point is simply that site-specific conditions have always formed part of the thinking behind the system. The question now is what role such evidence has within the modern process.

That question has become more relevant following the publication of the joint UK National Parks Wildfire Management Position Statement, endorsed by all 15 National Park Authorities. It places a strong emphasis on prevention, recognises that wildfire risks and appropriate measures vary according to local circumstances, and identifies wildfire risk assessment, fuel loads and the mapping of previous wildfire incidents among the matters National Parks should consider.

Significantly, the statement also acknowledges that during the transition to some nature-recovery habitats “fuel loads will increase”, with a corresponding need for fire-risk mitigation.

The MA welcomes that recognition. It reinforces the case for ensuring that the Section 25 process is capable of considering credible evidence about exceptional conditions on a particular area of land, and of acting on that evidence while preventative action is still possible.

Can the process operate quickly enough?

The three cases have also exposed a second issue: speed. Wildfire conditions can develop and change over hours or days. A preventative power therefore needs to be capable of reaching a decision while the danger still exists.

The first application was submitted on 11 August.

On 13 August, while it remained live, the MA wrote urgently to the PDNPA after another wildfire broke out on an adjacent moor. The Authority was told:

“The risk described in Tuesday’s application is no longer simply a forecast possibility.”

The MA requested an urgent determination and chased again the following day because of the continuing wildfire risk. The application was eventually determined on 18 September - 38 days after it had been submitted.

Whatever the reasons for that timescale, it raises an obvious question about whether a process taking more than a month can provide meaningful preventative protection against conditions which may change in a matter of days.

There is a similar national issue. Natural England has confirmed to the MA that a Section 25 request received over a weekend will not be considered until Monday morning. Wildfire risk does not pause over a weekend.

The MA believes Natural England's review should therefore consider not simply the FSI threshold, but whether the operational arrangements for Section 25 are capable of responding to an urgent and fast-changing risk.

What evidence does an applicant need?

There is another important lesson. Throughout the live application, we repeatedly invited the PDNPA to identify any further information or evidence it required. The application was subsequently validated and an officer inspected the land.

At no stage before determination were we told that an independent expert assessment was required. Yet the eventual refusal relied in part on the absence of an “independent expert assessment” and sufficiently detailed mapping when deciding what weight to give significant parts of the evidence.

The MA subsequently asked the Authority to clarify exactly what this meant. The PDNPA indicated that an assessment might be undertaken by someone with appropriate qualifications and experience - potentially an ecologist, environmental professional or land manager. But it has not defined what “appropriately qualified” means, what qualifications or experience would be sufficient, what methodology or measurements are required, or what constitutes sufficiently detailed mapping. Nor has it explained whether the assessor must inspect the land while the exceptional conditions are actually occurring.

That matters. Without a clear evidential standard, an applicant could commission an assessment urgently and still discover only at determination that the Authority does not regard either the expert or the evidence as sufficient. In a process intended to prevent wildfire, that uncertainty risks creating delay precisely when speed matters most.

The MA asked these questions explicitly on 5 October. At the time of publication, we have not received answers. These are basic matters which owners and managers need to understand before the next emergency arises.

Requiring specialist evidence may sometimes be entirely appropriate, but if it is necessary it must be made clear at the outset: applicants should not discover only in the refusal what evidence the decision-maker considered necessary.

Why the appeals matter

None of this means that every Section 25 application should succeed. Any access restrictions must be necessary, evidence-based and proportionate. But three separate cases reaching the Planning Inspectorate suggest that this is no longer simply a disagreement about the circumstances on one moor. They raise wider questions about how landowner and manager applications are supposed to work:

Can site-specific evidence be considered where FSI remains below Level 5? What evidence is required? How quickly must an urgent application be determined? And what effective remedy exists if the dangerous conditions have disappeared before an appeal can be heard?

The last point is particularly important. By the time an appeal is considered, rain may have fallen and the immediate danger may have passed.

That makes it even more important that the rules are clear before the next period of exceptional wildfire danger begins.

Natural England's review

There has been a useful development. Natural England has confirmed that its review of Section 25 and the FSI will now also consider the concerns raised about applications from landowners and managers. The MA welcomes that widening of the review.

We believe it should provide clear answers on the relationship between FSI Level 5 and site-specific evidence, the evidence applicants are expected to provide, arrangements for urgent and out-of-hours requests, reasonable determination timescales and how an effective review or appeal can operate while protection is still needed.

We would also encourage Natural England to produce a simple national Section 25 fire-prevention application protocol and evidential checklist which every relevant authority can publish and use consistently.

What happens next?

The three appeals will now follow their course through the Planning Inspectorate. In parallel, the MA is continuing to examine the original scientific and policy basis for the system, seeking information about previous Section 25 restrictions and engaging with Natural England's review. Our objective remains straightforward: a transparent, evidence-based and workable system capable of taking proportionate preventative action when wildfire risk becomes exceptional.

Public access and wildfire prevention should not be treated as competing objectives. A properly functioning Section 25 process should help protect visitors, firefighters, neighbouring communities and the landscapes they come to enjoy.

We will update members as the appeals and Natural England review progress.