HS2 felling at Jones’ Hill Wood

Environmental campaigner Mark Keir judicially reviewed Natural England’s grant of a derogation licence to HS2 contractors. The licences authorised contractors to fell trees at Jones’ Hill Wood, an ancient woodland in Buckinghamshire along the HS2 route and widely reported to be the inspiration of the Roald Dahl’s ‘Fantastic Mr Fox’. The challenge focused on the presence of barbastelle bats there, a European protected species.

Jones Hill Wood, an ancient woodland, was known to be the habitat of bats, all protected under regulation 42 of and Schedule 2 to the Conservation of Habitats and Species Regulations 2017. The regulations allow for derogation licences including for “imperative reasons of overriding public-interest, including those of a social or economic nature”.

To grant a derogation licence, an applicant is required to demonstrate to the regulator, Natural England, that work will not affect the species’ favourable conservation status (‘fcs’). Although there was insufficient surveying undertaken by the applicant, and controversially, a theoretical ‘worst case scenario’ was adopted by the Natural England, to include the maternity roost of a barbastelle bat, a rare feature of a rare species. On this basis, a derogation licence was granted to HS2’s contractors on 30 March 2021 allowing them to carry out work including felling the 19 trees.

As felling had commenced, JR proceedings and an urgent injunction were sought on the basis that there was concern, as shared by two expert ecologists, about the efficacy of the mitigation to be provided and its adequacy to achieve compliance with the test for the barbastelle bat favourable conservation status. The interim application was granted by Lang J and the injunction awarded, requiring the immediate cessation of felling and other works. However, this was resisted by the Interested Party and a full permission hearing was heard before Holgate J on 24 April 2021. Mr Keir advanced 5 grounds of claim, including that Natural England failed to consider whether the proposed works would be detrimental to the favourable conservation status of the barbastelle bat species on the basis of the best available best scientific evidence. It was also argued that Natural England failed to give reasons justifying a departure from its policy or failed to have regard to obviously material considerations and that it failed to give reasons justifying inconsistency with its refusal of the initial derogation application. The final ground stated that Natural England acted irrationally by failing to acquaint itself with sufficient information. After a full day’s hearing, the application for permission to apply for judicial review was refused and the injunction was discharged.

Dominic Woodfield and Rob Mileto provided expert ecological evidence. Charles Streeten of Francis Taylor Building was instructed as counsel.