Wild Justice v Natural England: High Court refuses advisory declaration in badger cull licensing challenge

The Administrative Court has refused to make an advisory declaration sought by Wild Justice and Badger Trust in their judicial review of Natural England's decision to issue 26 supplementary badger control licences in May 2024. In R (Wild Justice and Badger Trust) v Natural England [2026] EWHC 1573 (Admin), Fordham J held that the court should not answer a hypothetical question in circumstances where no unlawfulness had been established and the factual premise underpinning the claim had ceased to exist.

The proceedings were filed in August 2024, targeting Natural England's (NE) grant of 26 supplementary badger control (SBC) licences under section 10(2)(a) of the Protection of Badgers Act 1992, permitting culls across specified areas for the purpose of preventing the spread of disease. The original grounds of challenge alleged improper purpose, reliance on legally irrelevant considerations, and inadequate reasons. The first and third grounds were abandoned during litigation; the second evolved significantly before the substantive hearing.

That second ground centred on five considerations drawn from an internal NE briefing note prepared for an executive committee meeting in April 2024. They included the potential consequences for NE's relationships with Defra, the farming community and the National Farmers Union, the risk of NE bearing liability for farming industry compensation claims, and the prospect of staff redundancies and wellbeing concerns if licences were withheld. The claimants initially pleaded that the decision-maker, NE's chief operating officer Dr Oliver Harmar, had had regard to these considerations when approving the licences on 3 May 2024. Witness evidence filed in November 2025 established that Dr Harmar had not accessed the briefing note during his decision-making process and that its contents had not been discussed in his meetings with NE's acting director of operations. The claimants accepted that evidence and abandoned the factual element of their case.

They then reconstituted the ground around what Fordham J described as the "Would-If Question": would the five considerations have constituted legal irrelevancies under section 10(2)(a) had the decision-maker taken them into account? A matching advisory declaration was sought on the basis that the answer would provide important clarity for future licensing decisions, given that substantive judicial review proceedings are unlikely to be resolved before SBC licences have run their course.

Fordham J declined, identifying eight features that combined decisively against the exercise of the jurisdiction. The question rested on a hypothetical and false premise: courts do not in general decide hypothetical questions. No unlawfulness had been found or could be found; a legal irrelevancy does not automatically vitiate a decision. The point was not a clean question of statutory interpretation suited to universal application. Critically, the answer was not materially contested: NE and the Secretary of State both accepted that four of the five considerations would have been irrelevant. Where parties are agreed, the court's essential function is not to record their consensus by way of declaration.

On costs, Fordham J ordered no order as to costs, concluding that competing factors balanced out. He noted that NE's original pleaded position, that the five considerations were permissibly relevant, had been untenable and was withdrawn late in proceedings. Weighed against that, the claimants' pursuit of the advisory declaration after November 2025 was ambitious and had failed. Most striking was that all costs after April 2025 could have been avoided: Leigh Day had offered in April 2025 to discontinue proceedings in exchange for no order as to costs, a proposal NE declined when its own costs stood at £5,800.

R (Wild Justice and Badger Trust) v Natural England [2026] EWHC 1573 (Admin). Fordham J. 26 June 2026. David Wolfe KC and Barney McCay (instructed by Leigh Day) for the claimants. Paul Luckhurst and Sean Butler (instructed by Browne Jacobson LLP) for the defendant. Charles Streeten (instructed by GLD) for the interested party.