What are “compelling reasons” for an Article 4 Direction?

By Emma Montlake

This month we were contacted by a volunteer Tree Warden for ancient and semi ancient woodland in Wiltshire. She and her local community have been campaigning over the past year to have motorbike trails removed from the woodland. The woodland is over 14 hectares and forms a green wedge. The trails have been taking place over decades, at least annually, sometimes twice a year, and cause extensive damage to the woodland floor and trees. The woodland is a Local Wildlife Site and has site wide Tree Protection Orders. The woodland is in the buffer zone for the SAC Bath and BOA Bat SAC and SSSI. There are a multitude of protected species, including bats, known roosts, Red Data birds and plants. The Red Data Book is the state document established for documenting rare and endangered species of animals, plants and fungi as well as some local sub-species that exist. There are also designated footpaths through the woodland. Locally it is a well-loved nature site.

The wood is privately owned and under Permitted Development Rights (PDRs), subject to a permit under the Transport Act 1988, motorbike trails had been taking place at least twice a year. As a warden of the woodland, recognising the damage being caused, she brought it to the attention of the Council. She also ran a local media campaign to back up her concerns, which was very effective with the local community. The Council appeared to take the matter seriously, the tree officer making a comprehensive recommendation to the Council that an Article 4 Direction be made.

If an Article 4 Direction is made, it has the effect of withdrawing PDRs. These allow land owners to do certain things without obtaining permission from the local authority. There have to be “compelling reasons” to make an Article 4 Direction.

Since the original campaign, our tree warden has been instrumental in having two motor trails postponed but is fearful that each time a permit is applied for a new event, she must orchestrate a new campaign. It is exhausting. Having recommended an Article 4 Direction, recently the Council has taken a different position and has now decided to monitor the situation and take no action. Naturally the community is upset and approached ELF.

There is also a question whether as the site is in the Bat SAC buffer zone, and in close proximity to the SAC, the activity should be subject to a Habitat Regulations screening opinion for an Appropriate Assessment.

ELF is grateful to Ruchi Parekh at Cornerstone Chambers for agreeing to provide a pro-bono opinion.

This matter represents just one of many examples that ELF sees where there are powers held by our environmental regulators and local authorities to deal with environmental harm but they are refusing to take action. Once again as is clearly illustrated in this matter, local authorities are not taking the action that is open to them.

If ELF were to reflect, we are seeing growing evidence of lack of action or enforcement being taken by local authorities, our nature regulators where there are clear breaches of regulation and legislation. It is of growing concern amongst communities, where lack of funds is repeatedly being given as a reason for lack of action. At ELF we have some sympathy with our regulators as we know that budgets have been slashed and this has an impact on what our regulators can do. In the meantime it is our environment and communities who suffer.