Wild Justice v Dartmoor Commoners' Council: High Court rules on overgrazing duties

The High Court has handed down a significant judgement concerning the statutory duties of the Dartmoor Commoners' Council ("DCC") under the Dartmoor Commons Act 1985 ("the 1985 Act"), finding that whilst DCC had not unlawfully failed to issue limitation notices to control livestock numbers, it had failed to carry out a legally adequate assessment of how many animals could properly be depastured on the commons.

The claim was brought by Wild Justice, a nature conservation organisation, which argued that overgrazing of Dartmoor's commons was causing sustained ecological harm to Sites of Special Scientific Interest and the Dartmoor Special Area of Conservation. Wild Justice contended that DCC had effectively abandoned its regulatory functions under sections 4 and 5 of the 1985 Act in favour of acting as a representative body for commoners, and that its resolutions of December 2024 and January 2025 — purporting to address the claim — were vitiated by apparent bias and an unlawful fettering of discretion.

The statutory framework

Under section 4(1) of the 1985 Act, DCC is under a duty to take such steps as appear necessary and reasonably practicable for the maintenance of the commons and the promotion of proper standards of livestock husbandry, having regard to the conservation and enhancement of their natural beauty. Section 5 requires DCC to make regulations to ensure the commons are not overstocked; this it discharged through the 1990 Regulations, regulation 9 of which empowers DCC to issue limitation notices fixing maximum livestock numbers on any unit of commons.

Ground 1: No duty to issue limitation notices

Mould J rejected the claimant's argument that section 5(1)(a)(ii) imposed a substantive duty on DCC to issue limitation notices wherever overstocking is evidenced. On a proper construction, the provision imposes a duty to make regulations capable of ensuring the commons are not overstocked — a duty discharged by enacting regulation 9. Whether it is expedient to issue a limitation notice in any given case remains a matter of discretionary judgement for DCC, to be exercised on case-specific evidence identifying a particular unit of common land. The claimant's evidence did not point to any unit in respect of which that threshold was met.

Ground 2: Failure to assess stocking levels — succeeds

The court found DCC in breach of its duty under section 4(1) to assess the number of animals that can properly be depastured on the commons from time to time. The judge accepted that such assessment is fundamental to DCC's core regulatory function — indeed, DCC had itself told the Fursdon Review that it was "the one statutory body specifically charged with determining grazing levels on all of Dartmoor's commons."

The Chairman's Report, prepared for DCC's December 2024 meeting, relied on individual members' personal knowledge and experience as the basis for that assessment. Mould J held this was legally insufficient. Reliance on anecdotal evidence does not discharge the Tameside duty of reasonable inquiry incumbent on a regulatory body discharging public law functions. A proper assessment requires quantitative and qualitative analysis: registered entitlements, actual depasturing numbers, seasonal variation, and the physical condition of the commons evaluated against their conservation obligations.

Remaining grounds

The claims of apparent bias, fettering of discretion, breach of section 28G of the Wildlife and Countryside Act 1981, breach of regulation 9(3) of the Conservation of Habitats and Species Regulations 2017, and ultra vires/improper purpose were each rejected. The court found that DCC's meetings following the commencement of proceedings represented a conscientious and open-minded response to the litigation, not a device to avoid judicial review. Neither the Chairman's Report nor the resolutions passed disclosed an irrevocable policy against exercising the limitation notice power.

Relief

Mould J declined to make the prospective mandatory order sought by Wild Justice — which would have required DCC to issue limitation notices following any assessment revealing overstocking — holding that such relief would improperly usurp DCC's own regulatory judgement. Counsel were invited to make written submissions on the appropriate form of relief following ground 2.

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