RSPB loses judicial review

27th January 2022


In R. (on the application of RSPB) v Natural England, the RSPB and a nature conservation scientist appealed a Natural England decision to grant a licence to “take and disturb” hen harriers for scientific, research or educational purposes under the Wildlife and Countryside Act 1981.

Hen harriers are a rare bird species and enjoy the highest level of statutory protection. Under EU Directive 2009/147, EU member states are required to designate special protection areas (SPAs) for their conservation. There are two SPAs in England.

Hen harriers feed grouse chicks to their young, and individuals seeking to maximise grouse numbers for shooting were killing harriers and destroying their nests. Criminal enforcement had limited effect. In 2015, Natural England recommended piloting a brood management scheme in which eggs and chicks would be removed from nests, reared in captivity and released into a suitable habitat away from grouse moors.

On receipt of a licence application in 2017, Natural England produced a Habitats Regulations Assessment in accordance with the Conservation of Habitats and Species Regulations 2017, identifying a potential decrease in breeding and juvenile survival as the trial’s principal risk; it suggested potential mitigation. It completed a Technical Assessment, concluding that there was no satisfactory alternative to the trial. The first licence was granted in January 2018.

Previous judicial proceedings claimed that Natural England was wrong to consider the application only in terms of research, and that it failed to consider hen harrier conservation.

It was alleged that Natural England should have considered satisfactory alternatives to brood management, not just alternatives to the trial.

A judge held that the 1981 Act required Natural England to consider only whether there were other satisfactory solutions to the scientific purpose, and that it had granted the licence lawfully. The judge declined to find that Natural England was protecting the grouse moor industry and concluded that Natural England had been entitled to find that the scientific trial would not adversely affect the SPAs’ integrity.

The appellants claimed the judge had been wrong to look at the research element while ignoring hen harrier conservation. They believed the judge should have considered Section 16(1) of the Act, which said “no other satisfactory solution” – meaning the broader objective of the EU Directive, not just the specific derogation. They also submitted that the decision was incompatible with Sections 16(1) and 16(A1), criminalising and preventing hen harrier persecution.

On appeal, it was concluded that the judge had been correct to find that Natural England had properly considered the application as being for permission to carry out a research project within the Act, rather than conservation. The judge found the Act’s structure and wording to be clear, that the “purpose” for which “other satisfactory solutions” had to be considered was the purpose for which the licence was sought, and that Natural England had been required to consider alternative solutions for the evidence-gathering process, not alternative conservation techniques.

They also confirmed that brood management was not designed to displace hen harriers but reduce their persecution; that brood management was not unlawful or contrary to SPA integrity; and that the trial was temporary and unlikely to involve many interventions in SPAs.

The appeal was dismissed.

Image Credit | Shutterstock

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