What to do if you are affected by Natural England's decision to revoke, from today, three wild bird general licences

Natural England (NE) has announced that, from today onwards, it is revoking three wild bird “general licences” issued under s16 of the Wildlife & Countryside Act 1981.https://www.gov.uk/government/news/general-licences-for-bird-control-major-changes-to-licensing-requirementsThese licences permitted land owners or other authorised persons to catch (alive) or kill certain species of wild birds and / or to take, damage or destroy their nests, or take or destroy their eggs, in each case for one or more of certain purposes:

• to prevent serious damage to livestock, crops, fisheries and to prevent the spread of disease; or
• to preserve public health or public safety; or
• to conserve wild birds, plants and other wildlife.

 

For a long time NE has been granting these licences annually, allowing any person to rely on them as long as that person could satisfy the terms and conditions of the licences. NE's decision to revoke these three licences has been taken in response to a legal challenge by Wild Justice of NE's grant of these licences.https://markavery.info/2019/04/24/statement-by-wild-justice/NE has clearly decided that Wild Justices challenge has legal merit.

The detailed aspects of the challenge are not at present known but we suspect that they include a failure by NE to apply lawfully the “no other satisfactory solution” test which must be met for the grant of such licences. We have also had concerns about this for some time. The revocation is going to have a significant impacts on those people and organisations who, until now, have relied on these three general licences so as to legitimise their activities which would otherwise be criminal offences against certain wild birds under the Wildlife & Countryside Act 1981.The sectors most likely to be affected are: farmers & agricultural operators, airport operators, mineral operators, other land managers and conservation organisations.

If you or your client is affected by this, you need to know what your options are now. These are as follows:

1. Avoid committing the criminal offences so that you do not need to rely on a s16 licence at all: You will need to ask yourself if there is any practical alternative to avoid triggering the offences covered by these licences. If there is, you can put the new arrangement in place and simply proceed immediately. Remember that the offences we are concerned with here require the prohibited act (eg killing, taking, damaging or destroying etc) to be carried out “intentionally” (ie meaning that the prohibited act must be a “virtually certain” outcome of your actions). Hence you would not be held criminally liable if the prohibited act occurred in circumstances where you had not acted intentionally (ie where the prohibited outcome was not virtually certain).
2. Rely on one of the legal defences in the Wildlife and Countryside Act 1981 so as to avoid criminal liability: If you cannot find a way of achieving what you need to do without triggering the offences, then you will need to consider if, instead of relying on a licence, you can rely on a legal defence. If you can, then you would simply make this decision yourself (ideally after having taken legal advice) and then simply proceed. This way you would not suffer the delays involved in applying to NE for your own bespoke wild bird licence (see 3 below). There are two key defences which may in some cases apply, particularly for reasons relating to public health and safety / preventing disease / preventing serious damage to livestock, crops etc. The terms of the legal defences are detailed and you should take legal advice as to whether in your situation any legal defence could apply. Freeths can assist you with this.
3. You can apply for a bespoke wild bird s16 licence from Natural England to cover your specific situation: This is your final option but you will be subject to operational difficulties due to the (likely) weeks of delay associated with the licence application process. This means that (unless you can rely on a legal defence in the interim) you would not be able to proceed lawfully with your activities until a licence has been issued by NE. Again Freeths LLP can advise you on the licensing and what information to include in your licence application.

 

If you would like to speak to a member of the Environmental team about this issue please contact: Penny Simpson Partner 0345 017 1133 [email protected]