High Court refuses permission to challenge legislation on burning on peat

In R (on the application of The Moorland Association and others) v Secretary of State for Environment, Food and Rural Affairs, the High Court (Lieven J) refused permission on 28 January 2026 to challenge the Heather and Grass etc. Burning (England) (Amendment) Regulations 2025 (‘2025 Regulations’), and the associated consultation.

1. 39 Essex Chambers’ barristers Kate Grange KC, Emily Wilsdon and Ruth Keating acted for the Secretary of State for Environment, Food and Rural Affairs, instructed by the Government Legal Department, at a hearing on 27 January 2026, following which permission was refused in a decision handed down on 28 January 2026.
2. This permission decision is a significant example of the courts finding that, in an area of environmental concern where a multiplicity of factors had to be balanced, the government is entitled to rely on expert advice from its advisers and is not required to put a scientific evidence review to consultation. Further, a licence system with climate change impact and biodiversity concerns at its heart that is introduced incrementally will not necessarily even arguably represent a disproportionate breach of property rights protected by A1P1.

Peatland is a significant element of the UK’s natural capital. It is essential for carbon storage, biodiversity, water regulation, and cultural heritage. Blanket bog, a peat habitat, is of international significance. It is a climax habitat. Following a public consultation, the 2025 Regulations extended the licencing system established in 2021 for burning over specific areas of peatland. The Claimants were, collectively, a specific cohort of landowners and land managers who have interests primarily in grouse shooting and hence burning – as burning encourages new growth of heather and grass shoots, and benefits grouse and livestock.

Their challenge was found unarguable on all grounds: (i) consultation; (ii) procedural fairness / Tameside; (iii) rationality; and (iv) A1P1.

1. They contended that the consultation was unfair because a peer reviewed scientific evidence review from Natural England was published in parallel with the consultation, and the government did not provide it within the consultation or consult on it.  However, it was referred to, and it was open to consultees to say in their response that they disagreed with the evidence in the Natural England evidence review – which the lead Claimant in fact did. It was a background document, and there was no arguable duty to consult on it.
2. They also contended that the Secretary of State did not give conscientious consideration to all the responses (i.e. a Gunning type challenge), and did not make sufficient inquiries into wildfire risks (i.e. a Tameside type challenge). However, the Secretary of State had undertaken a long and detailed ‘de minimus assessment’ and had considered those risks, and the relevant Minister had met with fire chiefs and had evidenced this. There was no arguable failure to give conscientious consideration or to make inquiries.
3. They contended that the decision was irrational. This was found not to be arguable: this was a highly technical area with clear policy arguments, and so the threshold for irrationality was a high one.
4. They contended a breach of their property rights (A1P1), i.e. the right to burn on deep peatland without a licence. However, the court found that the Regulations pursued a legitimate aim both in terms of climate change impact and also biodiversity. Contrary to language used by the Claimant, it was not a ‘ban’ but a licensing regime. The introduction of this licensing regime had been an incremental one, and indeed before licencing a voluntary scheme had been tried. This ground was found to be not arguable.

The Claimants have applied for permission to appeal.