William Buckler v Natural England

On hearing the Appellant in person and Mrs E Wyborn, solicitor, on behalf of the Respondent, the Tribunal unanimously determines that the appeal is dismissed. Reasons Introduction

1. The Respondent is a non-departmental statutory body sponsored by the Department for Environment, Food and Rural Affairs as the English Government’s adviser on the natural environment. Its purpose is to promote the conservation, enhancement and management of the natural environment for the benefit of present and future generations. Its duties include designation (or ‘notification’) of Sites of Special Scientific Interest and enforcing the protection of such sites. We will use the abbreviation SSSI.

2. The Appellant is an experienced property developer and, since 7 October 2019, the freehold owner of a residential property overlooking Poole Bay (‘the Site’) part of which comprises land within the Poole Bay Cliffs SSSI.

3. In these proceedings, the Appellant seeks to challenge: (a) a Variable Monetary Penalty (‘VMP’) Final Notice issued to him by the Respondent on 4 March 2025, requiring him to pay a total penalty of £8,812.07 in respect of infringements at the Site between 16 July 2021 and 18 April 2023 of the Wildlife and Countryside Act 1981 , Hereafter, ‘ the 1981 Act ’ s28 P(1) (failure to give the Respondent notice before carrying out a specified operation) and s28 P(6) (intentional or reckless destruction of, or damage to, protected flora, fauna or geological or physiographical features etc); and (b) an Enforcement Costs Recovery Notice (‘ECRN’) of the same date in the sum of £11,187.93.

4. The appeal came before us for final determination in the form of a video hearing by CVP, with one sitting day allocated. We were satisfied that it was appropriate to proceed in that way. The Appellant, who frankly acknowledged that he was not well-prepared, represented himself. Mrs Wyborn, a solicitor, appeared for the Respondent. An agreed bundle of over 600 pages was before us but it soon transpired that the Appellant was not able to open it. After a break the technical difficulty was resolved, but it is right to place on record that, as Mrs Wyborn explained to us without challenge, he had been in possession of the bundle since August.

5. There was then a discussion about the scope of the appeal. In particular, the Appellant raised a question which appeared to go to the validity of the Respondent taking any enforcement action against him, on the basis that there had been no infringement of the 1981 Act . This seemed surprising to us since the notice of appeal of 28 March 2025 is unambiguous in raising a challenge to the quantum of the VMP but nowhere puts in issue the regulator’s power to impose a sanction at some level . The way in which the notice of appeal was framed explains the Respondent’s Response of 22 May 2025, which engages only with the matter of quantum. And consistent with this history is the undated statement of agreed facts produced pursuant to a case management direction of the Tribunal, which recites (para 5) that: ‘Building works on the SSSI by [the Appellant] breached The document seems to have been completed in June or early July 2025. section 28 P(1) and section 28 P(6) of the [1981 Act]’. We explored with the Appellant the possible implications of an attempt at the final hearing to change the entire character of the appeal as he appeared to envisage (among others, the need for an amendment application to be made, the near-certainty of amendment, if granted, resulting in a postponement, and the likely consequences of any postponement, including increased delay and the possibility of a costs order being made). After a brief adjournment for reflection, the Appellant told us that he would not seek to depart from, or expand upon, the case which we had gathered to determine.

6. We then moved on to discuss evidence. In addition to the bundle of documents, the Respondent produced two witnesses, Ms Alex Goodman and Ms Lucy Wyman, both officers in its Enforcement and Appeals Team. Both had served witness statements in accordance with standard case management directions.

7. The Appellant told us that he wished to make a statement. We explained to him more than once the nature of evidence and the distinction between evidence and argument. Case management directions had spelled out the need for witness statements to be presented in the names of all witnesses to be called to give evidence. It was an agreed fact that the Appellant had not produced a witness statement. In the circumstances, we explained that he would not be permitted to give evidence. On the other hand, he would be free to address oral argument to us, in which he could refer to, and/or comment on, the documentary material and the witness evidence given on behalf of the Respondent.

8. Eventually, it was agreed that we could embark on the hearing proper. Mrs Wyborn called her two witnesses and Ms Wyman was briefly cross-examined.

9. We then heard closing argument from Mrs Wyborn and the Appellant in turn. At one point it was necessary to intervene to remind the Appellant that, although his freedom to make submissions by reference to the evidence already presented was unconstrained, he was not at liberty to give evidence (see above).

10. Finally, well into the afternoon session, we reserved judgment and took time in private to reach our decision. The statutory framework

11. Offences under the 1981 Act may be prosecuted in the ordinary way in the Magistrates’ Court. As an alternative, regulators may enforce relevant legislative duties through civil penalties, pursuant to the Environmental Civil Sanctions (England) Order 2010 (‘the 2010 Order’).

12. The 2010 Order includes provisions which enable the Respondent to impose VMPs and ECRNs (article 3 read with schedule 2, and article 8 respectively).

13. An aggrieved person may appeal to the Tribunal against the imposition of a VMP or ECRN. On the appeal the Tribunal has wide powers: it may ( inter alia ) withdraw, confirm or vary any notice under challenge (the 2010 Order, article 10). In the usual way, the Tribunal treats the appeal as a rehearing. It must simply make its own decision on the evidence before it (which may well differ from that before the enforcement authority at the time of the decision in question). This said, the Tribunal must accord ‘great respect’ and ‘considerable weight’ to any public authority’s policy on financial penalties (see Waltham Forest LBC v Marshall and Ustek [2020] UKUT 0035). The key facts

14. The central facts can be summarised as follows. 14.1 The Appellant purchased the Site in October 2019 for a little over £3.1m. 14.2 In January and February 2021, communications between the Appellant’s agent and the Respondent resulted in the latter giving permission for tree-felling works at the Site. 14.3 In early 2022 the Respondent was made aware of reports of unauthorised excavation works having been carried out at the Site affecting geological features of the SSSI. Site visits followed, on 9 May 2022 and 1 September 2022. It was evident that large quantities of soil had been removed, apparently for the purposes of constructing an infinity pool. The soil has been identified as including Branksome sands formation and Quaternary gravels, key features contributing to the Site’s special geological interest. It seems that the work had been commenced in July 2021. 14.4 The Appellant made no application to the Respondent for permission to carry out the works. Nor did he inform the Respondent of his intention to perform any work. 14.5 Nor did he apply to the local planning authority for planning permission. 14.6 The Respondent judged the damage to the SSSI resulting from the works to be permanent and irreversible. The Appellant has not challenged that assessment. 14.7 In correspondence initiated on 28 June 2022 the Respondent wrote to the Appellant asking him to stop the works pending any decision on further action. The Appellant objected to doing so but then relented. The apparent change of heart may have been prompted by warnings from the Respondent and the local planning authority that any resumption would be met with Stop Notices. 14.8 The works were, however, resumed in fairly short order (without permission from the Respondent or the local planning authority) and continued until the local planning authority carried out a site visit and gave an immediate instruction to stop on or about 28 March 2023. At that visit it was evident that further excavation had been done (in addition to the 2021-2022 activity), at least some within the boundary of the SSSI. 14.9 The Appellant received instructions and advice from the Respondent in 2021 and 2022 in the use of a Magic mapping tool to identify the boundary of the SSSI. He did not seek further assistance from the Respondent and it seems that he did not raise or renew his claim to be confused about the location of the boundary until 2025. 14.10 The Appellant’s often-repeated assurance to the Respondent and the local planning authority from the summer of 2022 onwards was that he intended to regularise matters by submitting a retrospective planning application covering all the unauthorised work. The application was eventually made on 12 September 2024. It sought planning permission for development of the Site consisting of ‘formation of the lower garden area and amended swimming pool location with associated works, including steps and retaining wall (part retrospective) and the erection of a replacement garden room.’ 14.11 The Respondent, consulted on the uncontroversial basis that the proposed development lay, at least in part, within the boundary of the SSSI, opposed the application in a letter of 15 November 2024, contending that, ‘… the unauthorised construction works carried out in the SSSI have destroyed a part of the geological features for which the SSSI is notified … these features are now lost and … the unauthorised piling works and construction activity … may not be undone without raising greater risks to both the lower geological formations and the structural stability of the cliff face as well as visitors using the promenade and beach huts below.’ 14.12 On 7 January 2025 the Council served a Notice of Intent on the Appellant. 14.13 As already mentioned, the VMP was dated 4 March. The document sets out the step-by-step approach (under the next heading below) which resulted in the penalty of £8,812.07. In outline, it fixes the ‘deterrent component’ at £5,000 (see further below), applies a total multiplier of 4 to reflect aggravating features, and then deducts the enforcement costs of £11,187.93, which are claimed separately by means of the ECRN. 14.14 The ECRN was also dated 4 March 2025. Attached to it was a schedule itemising the enforcement costs claim. Hours spent on the case between June 2022 and September 2024 by Ms Wyman, Ms Goodman, Ms Lochhead (another member of the enforcement team) and Mr Squirrell, Senior Planning Adviser, are shown as 100.5 and claimed at the standard rate of £110 per hour (total £11,055). Disbursements for one site visit add a further £132.93. 14.15 Service of the VMP and the ECRN left the Appellant with a total liability of £20,000. 14.16 The Appellant appealed to the Tribunal against the VMP on 28 March 2025. 14.17 The Respondent responded to the appeal on 22 May 2025. 14.18 To that response, the Appellant presented a reply on 4 June 2025. The Respondent’s Enforcement Guidance

15. The Respondent publishes detailed Enforcement Guidance, explaining its methodology in setting civil penalties (‘the Guidance’). It starts with the ‘deterrent component’, which may reflect the sum by which the offender has benefited from his offence or the cost of restoration (where damage can be repaired), but otherwise takes the maximum penalty available in the Magistrates’ Court. It seems that the Magistrates’ Court’s power to impose fines is, in fact, unlimited as to amount.

16. The second stage of the methodology is to apply multipliers to reflect aggravating factors. Each factor is considered in turn and multipliers are added together. The total multiplier so calculated is then applied to the deterrent component.

17. Thirdly, where appropriate, the penalty is reduced by an appropriate percentage to take account of mitigating factors.

18. The Guidance then provides for deductions. These include, where applicable, any ECRN.

19. The resulting figure is the sum payable under the VMP.

20. The offender will, of course, also be required to discharge the ECRN.

21. There was no suggestion that the Guidance has ever been the subject of any adverse judgment by any court or tribunal.

22. We will refer to the Guidance again in our analysis and conclusions below. The appeal

23. The nub of the appeal was that the Appellant had been open and co-operative with the Respondent and the overall penalty of £20,000 was disproportionate and manifestly excessive.

24. Mrs Wyborn submitted that the Appellant had been leniently treated and had no arguable ground for feeling aggrieved. Analysis and conclusions

25. The argument centred of five areas of dispute under the Respondent’s Enforcement Policy: (1) blameworthiness; (2) attitude; (3) foreseeability/risk; (4) mitigating factors; and (5) the costs set-off. We will address them in turn.

26. As to blameworthiness , the Respondent applied a multiplier of 1, classifying the offence as ‘negligent’. The Guidance explains that this description is apt ‘where the offender was in a position to stop or prevent the offence but failed to recognise the danger or have the correct procedures in place’. The next multiplier up (2), is applicable to ‘reckless’ offences, namely ‘acts that are committed intentionally without regard for the consequences and/or the environmental harm that results.’ The classification below (‘low/no culpability’, for which the multiplier is 0.1) is reserved for cases arising ‘as a result of a genuine accident rather than the absence of prudent preventative measures …’

27. We cannot agree with the Appellant that the Respondent was wrong to apply a multiplier of 1. Indeed, we can see force in the submission of Mrs Wyborn that, if anything, the case was closer to ‘reckless’ than ‘negligent.’ He knew that he was the occupier of land that attracted special protection. He is a professional property developer of many years’ experience. If he was unsure of where he stood from the legal and environmental perspective, he knew which public authorities to approach (the Respondent and the local planning authority, for a start) and/or what professional advice to seek and from whom. At all events, we are quite satisfied that the Respondent was entitled to treat this as a ‘negligent’ case and, given the need to attach due weight to the regulator’s judgment (see the case-law cited above), we would ourselves be drawn into error if we were persuaded to overrule its assessment as impermissibly harsh.

28. Turning to attitude , the Guidance explains that this factor is directed to the offender’s attitude to, and actions following, the offence. Three possible multipliers are listed: 0, 1.5 and 3. The lowest will be suitable where prompt action is taken which immediately stops the harm occurring or continuing, or where full and frank co-operation is offered to facilitate investigation and/or remediation. The middle factor applies where partial, insufficient or incomplete action is taken and/or the co-operation was less than full and voluntary. The multiplier of 3 is reserved for where there is no action to stop the offending and/or a refusal to co-operate with an investigation and/or remediation.

29. Here again, we prefer the submissions on behalf of the Respondent. The Appellant’s contention that a 0 multiplier was appropriate cannot be accepted, given in particular the established fact that, although the works were initially halted, he resumed them in 2023. In our judgment, the 1.5 bracket was correctly, and certainly permissibly, chosen.

30. As to foreseeability/risk , this factor focuses attention on whether the offending or any resulting environmental harm could have been foreseen by the offender and how effectively risks and their consequences were being managed. Five multipliers, ranging from 0 to 4, are offered. The middle option, 2, is described by the Guidance as apt where the offence is foreseeable but results in only a ‘minor incident’, which means, as is clear from the text as a whole, minor harm or damage.

31. Under this head we find that the Appellant is again ambitious in his arguments. Given the location, scale and nature of the works carried out, the offences were plainly foreseeable. As to the ‘minor incident’ designation, we are not persuaded by his attempt to turn the regulator’s restraint to his own advantage. It seems to us that he would have struggled to challenge a designation of ‘medium incident’ and a multiplier of 3. He certainly cannot show that there was anything harsh about the multiplier of 2 which was applied. Nor is it fair to seize on the relative term ‘minor’ as trivialising the offences.

32. We turn to mitigating factors. Here the Guidance identifies the following possible factors and percentage reductions which they may warrant: preventive measures taken prior to the offence; co-operation with the Respondent; self-reporting; remediation; attitude (in particular, action taken to stop the offence and prevent recurrence); and personal circumstances (such as age or infirmity of the offender). The Guidance also admits of the possibility of case-specific mitigation factors being taken into account on a discretionary basis, although it stresses that such will be rare.

33. The Respondent saw no reason to adjust the VMP on account of mitigating factors, judging that those which were relevant had been duly accounted for under blameworthiness , attitude and foreseeability/risk . The Appellant contends that a 5%-10% reduction should be applied to recognise the Site’s ‘pre-disturbed nature’, his ‘voluntary action to halt work’ and his ‘personal investment’ in improving the Site ecologically. The Respondent replies that the work did not cease: the Appellant halted it in 2022 but resumed it in 2023. And such improvement works as have been effected, while welcome, did not mitigate or compensate for the irreparable damage to the geological features of the SSSI.

34. In our judgment, the Respondent is quite justified in its contention that such (very modest) mitigation as can be found is more than adequately reflected in the relatively favourable outcomes (from the Appellant’s point of view) on the aggravating factors. We can see no error in its overall approach on mitigation.

35. That brings us to the question of costs . The Appellant’s case is simply that the sum claimed in respect of the enforcement costs is wholly excessive and unreasonable. The Respondent says otherwise.

36. We unhesitatingly reject this part of the appeal for two reasons. In the first place, we see nothing excessive in the costs schedule. The charging rate of £110 per hour is, by the standards of recent times, the essence of moderation and, given the duration of the saga, the Respondent is not to be criticised for the number of hours which it was forced to devote to managing it. (And, for the avoidance of doubt, we find as a fact that the hours spent on the case were certainly not fewer than the number claimed for.)

37. The Appellant’s challenge here fails for the further reason that it misses the point. The disagreement about the figure claimed by way of the ECRN has no practical significance, since it stands only as a deduction from the VMP calculation, to be paid to the Respondent under a different head. The key point is that we have found that the VMP figure (before deduction of recoverable enforcement costs) is unassailable. Accordingly, had we seen any merit in the attack on the ECRN figure, the best that the Appellant could have hoped for would have been for us to vary the two notices, reducing the ECRN award and increasing the VMP by a corresponding amount. His overall liability would have been unchanged.

38. For the reasons given, we find nothing of substance in any of the individual points of appeal which we have examined.

39. Finally, we have taken the precaution of stepping back from the detail to survey the appeal in the round, conscious that doing so can sometimes yield a fresh, and perhaps truer, perspective of a kind which myopic line-by-line analysis may obscure. That exercise has only confirmed our view that this is an appeal which is notably free of merit. Outcome

40. The appeal is dismissed. Signed Anthony Snelson Judge of the First-tier Tribunal Date: 16 January 2026