Changes to the wild animal licensing regime in England under the Wildlife and Countryside Act 1981 are coming into force today

There are three new changes coming into force today (30 September 2022). These changes apply to England only.

WHAT HAS CHANGED?

First, section 111 of the Environment Act (“EA 2021”) amends the wildlife licensing regime in England under s16 of the Wildlife and Countryside Act 1981 (“WCA 1981”).

The amendments to s16 WCA 1981 will enable WCA 1981 wild animal licences to be issued in England under s16(3) of the WCA 1981 for a new statutory licensing purpose i.e. reasons of overriding public interest. This new purpose will assist those involved in development activities.

The amendments to s16(3) WCA 1981 will also require that a wild animal licence may only be granted in England where:

1. there is no other satisfactory solution, and

2. the grant of the licence is not detrimental to the survival of any population of the species of animal or plant to which the licence relates.

Secondly, there are amendments to s10 WCA 1981 for England which have the effect of reducing exposure to WCA 1981 offences in relation to European Protected Species (“EPS”) when you obtain and comply with a Conservation of Habitats and Species Regulations 2017 (“Habitats Regulations”) EPS licence.

Thirdly, the period for which a wildlife licence in England may be issued by Natural England under s16(5)(A)(c) and s16(6)(b) WCA 1981 and regulation 55(10) in the Habitat Regulations has been extended to five years.

WHAT DOES THIS MEAN FOR YOU?

What does this mean for domestically protected animals and plants under WCA 1981?

The changes under s16 WCA 1981 for England mean that for animals and plants domestically protected (only) under the WCA 1981 (e.g. water voles) you can for the first time in England now obtain a licence under the WCA 1981 for the statutory purpose of “reasons of overriding public interest”.

This is significant because, before now (unless you were willing to rely on the legal defence of s10(3)(c) WCA 1981), if your development activity was likely to trigger a WCA 1981 protected species criminal offence and you wanted to obtain a licence to protect you / your client from prosecution, then you had to shoe-horn your licence application into one of the other existing statutory purposes e.g. “for the purpose of conserving wild animals or wild plants or introducing them to particular areas”. This was the approach commonly adopted with water vole licence applications and was artificial and unsatisfactory.

The position is now improved as you can now make a licence application for development purposes under the new statutory licence purpose of “reasons of overriding public interest”. This is helpful and leads to less uncertainty. A particular EPS example when this would be helpful is where your project is not likely to “deliberately disturb the species” and thereby is not triggering the threshold for disturbance under regulation 43(1) of the Habitat Regulations. You could however still be committing a disturbance offence under s9(4)(b) WCA 1981 (see offences below) but up until now you could not get a licence for development works under the WCA 1981 to protect you against that offence and so you would have had to rely on the defence under s10(3)(c) WCA 1981. The new licensing regime in England now allows you to obtain a WCA 1981 licence for “reasons of overriding public interest” which provides more certainty.

A legal defence under s10(3)(c) WCA 1981 is still available but in general we suggest obtaining a licence.

What does this mean for EPS?

In England EPS are protected by criminal offences in both the Habitats Regulations and the WCA 1981.

Under regulation 43(1) Habitat Regulations the key EPS offences are:

1. deliberately captures, injures or kills any wild animal of a European protected species
2. deliberately disturbs wild animals of any such species
3. deliberately takes or destroys the eggs of such an animal
4. damages or destroys a breeding site or resting place of such an animal

Under s9(4)(b) WCA 1981 a person is guilty of an offence if he / she intentionally or recklessly disturbs an EPS while it is occupying a structure or place which it uses for shelter or protection.

Under s9(4)(c) WCA 1981 a person is guilty of an offence if he /she intentionally or recklessly obstructs access to any structure or place which any EPS animal uses for shelter or protection.

As many of you will know, where a development activity is likely to trigger a Habitats Regulations regulation 43 offence then an EPS licence under the Habitats Regulations is needed.

The changes under s10 WCA 1981 mean that, in England, if you now obtain an EPS Habitats Regulations licence and you follow and comply with the licence then you are no longer exposed to the offences under s9(4)(b) and s9(4)(c) WCA 1981. You will however still be exposed to the s9(4)(b) and s9(4)(c) WCA 1981 offences if you do not have an EPS Habitat Regulations licence or if you do not comply with the requirements of your EPS Habitats Regulations licence.

It follows therefore that if you are working under a precautionary method of working without a Habitat Regulations licence you could still potentially be exposed to an offence under s9(4)(b) and s9(4)(c) of WCA 1981.

Prior to this change even when you had a Habitat Regulations licence and complied with it you still had potential exposure under the WCA 1981 offences.

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If you require explanation of the EPS legal framework then please come on our EPS legal training course on 8 and 9 November 2022.

Should you have any queries in relation to this legal update please contact: Penny Simpson (0345 017 1133 | penny.simpson@freeths.co.uk)