The Queen (on the application of Richard McMorn) v Natural England Department for the Environment Food and Rural Affairs (Interested Party)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Ouseley
Judgment Date13 November 2015
Neutral Citation[2015] EWHC 3297 (Admin)
Docket NumberCase No: CO/4133/2014

[2015] EWHC 3297 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Ouseley

Case No: CO/4133/2014

Between:
The Queen (on the application of Richard McMorn)
Claimant
and
Natural England
Defendant

and

Department for the Environment Food and Rural Affairs
Interested Party

James Maurici QC and Richard Moules (instructed by Gordons LLP) for the Claimant

Stephen Tromans QC and Colin Thomann (instructed by Natural England) for the Defendant

Hearing dates: 10th, 11th and 12th June 2015

Mr Justice Ouseley
1

The Common Buzzard is protected under the Wildlife and Countryside Act 1981. It cannot be killed or captured without a licence issued by Natural England. Statutory tests have to be satisfied before Natural England can issue such a licence. But it is not a threatened species. It has the same legal protection as carrion crows, magpies, Canada geese and wild pigeons. There are now at least 300,000 common buzzards in the UK; it is a common and widespread species and "arguably the most abundant diurnal raptor in Britain", according to Natural England, with breeding pairs more than doubling between 1993 and 2008. It has continued to spread eastwards from its western strongholds and in 2008 was "well reported through the year in Northumberland."

2

The Claimant is a gamekeeper who managed six pheasant shoots over eleven farms covering some 2000 hectares in Northumberland. Each shoot had four days' shooting a year between 1 October and 1 February. It was the Claimant's task to provide a set number of pheasants for shooting on each day. There were ten sites at which he released pheasant poults, young pheasants, with some 250 poults released at each site. Poults are released to the pens in late July and August; their size makes them prey for buzzards, which are also then feeding fully or nearly fully fledged broods.

3

He applied to Natural England, NE, for licences on five occasions between 2011 and 2014 to kill a small number of buzzards which, he said, were doing serious damage to his pheasant poults by killing and disturbing them. He was refused such a licence on every occasion, despite recommendations by various NE Technical Assessors that some be granted.

4

He did obtain, on an application in April 2013 for a licence to kill some common buzzards, a licence to destroy four buzzard nests and any eggs in them. The last refusal of a licence to kill common buzzards was by a decision of 5 June 2014. That is the decision challenged in these proceedings. The Claimant was granted licences by NE to kill twenty herring gulls and five great black-backed gulls on the farms in 2011 and 2013, and, also in 2013, to kill three cormorants. The gulls were predating on wild grey partridges and the cormorants on trout at a local fishery.

5

NE has decided 90000 applications for licences since 2006, at roughly 10000 a year. There have been 43 reviews of Technical Assessments since 2011; the recommendation has not been followed on three occasions, all relating to this Claimant's applications: in 2011, his first application of 2013 and in 2014. Since 2006, only eight licence application decisions have been taken at NE Director level: three relate to this Claimant's applications and, of the rest, one more relates to buzzards. NE also operates a system of "peer review" in its decision-making to ensure sound and objective decisions are made. This different review, if at odds with the decision, leads to the decision-maker reconsidering the decision, but it is not an appeal system, and the eventual outcome may be no different.

6

The Claimant's pheasant shooting business is at an end; he contends that predation by common buzzards made it unviable. The income he received from managing the pheasant shoots was about £10,000 a year. Most of his income came from deer stalking the rights to which, over the eleven farms, were dependant on his providing successful pheasant shoots to the farmers. The Claimant had to give up managing three shoots because they were no longer viable and the three other farmers terminated their shoots as the "bag returns" were too low for the cost of running the shoots.

7

The Claimant, supported by the National Gamekeepers Organisation, NGO, challenges that last decision of June 2014 on a variety of legal grounds at the heart of which is the contention that NE treated raptors differently from other wild birds, making it far harder, well-nigh if not quite impossible, to satisfy NE that the statutory conditions for the issue of a licence had been met, and that it treated them differently because of the public controversy which the grant of a licence for the killing of buzzards, to prevent serious damage to a pheasant shoot, would engender, or because of perceived adverse public opinion. The difference in treatment lay in the standard of proof and the quality of evidence required to justify a licence, making the threshold for its grant far higher in the case of buzzards or raptors than other species. NE has never granted a licence to kill or capture buzzards or other raptors preying on pheasant poults.

8

All of this led, it was contended, to a decision based on unjustified inconsistencies in NE's treatment of raptor and other birds equally protected; this was based on an undisclosed policy to apply these more exacting tests; public opinion was admitted to be legally irrelevant but in reality was taken into account as the basis for the inconsistencies and the undisclosed policy to apply more exacting evidential standards. The decision was also unreasonable; NE, unlawfully, had made applications for the grant of licences almost impossible to obtain in respect of buzzards predating on poults.

9

Permission had been refused for the first ground pleaded, which related to the way in which the June 2014 decision had dealt with the question of trapping some buzzards for capture as an alternative to trapping them for killing. Permission was refused on paper by Thirlwall J and the renewed application was before me effectively for a rolled–up hearing. I heard full argument; I grant permission.

10

The final issue before me was whether the claim fell within the scope of the cost protection of the Aarhus Convention. Thirlwall J concluded, on paper, that it did not. The Claimant renewed his claim before me that it did.

11

These grounds have involved consideration of NE's decisions on the Claimant's earlier applications, of emails between NE and the Department for the Environment, Food and Rural Affairs, DEFRA, an Interested Party, which did not appear and was not represented, whose role was not immune from criticism by both NE and the Claimant. No ground asserted that the decision had been pre-determined by NE, and Mr Maurici QC for the Claimant confirmed expressly that that was not how he put his case.

The legal and policy framework

12

The Birds Directive, 2009/147/EC, contains a general prohibition in Article 5 on the capture or killing of wild birds, the deliberate destruction or damaging of their nests or eggs and the deliberate disturbance of the birds especially during breeding or rearing. This is not for the protection of the species as such but for the protection of the individual birds. It requires Member States to establish a general system of protection for wild birds. The common buzzard is not one of those species covered by Annex 1 which are the subject of "special conservation measures". Article 7 permits hunting of certain species of wild bird.

13

Article 9 contains provisions permitting derogation from Article 5:

"Where there is no other satisfactory solution for the following reasons:

(a) — in the interests of public health and safety

— in the interests of air safety

— to prevent serious damage to crops, livestock, forests, fisheries and water

— for the protection of flora and fauna."

14

The relevant provision in this case is "to prevent serious damage to livestock." I note that, like the others, it is a preventive provision, and not one which requires serious damage already to have occurred.

15

The Directive is given domestic effect by amendments to the Wildlife and Countryside Act 1981, the WCA. Section 1 makes it an offence to kill or take a wild bird, or to damage or destroy its nest when it is being built or in use or to take or destroy its eggs. But that is subject to the provisions of the Act which include powers to grant licences for such actions, which reflect the derogation provisions of the Birds Directive.

16

S16 disapplies s1 in a variety of circumstances, which include those in the Directive, slightly differently ordered and phrased, of which at s16 (1)(k) is anything done "for the purposes of preventing serious damage to livestock… if it is done under and in accordance with the terms of a licence granted by the appropriate authority". "Livestock" includes any animal kept, as are the pheasant poults here, "for the provision or improvement of shooting or fishing"; s27(1). For the purposes of s16(1)(k), the appropriate authority is "the agriculture Minister"; s16(9)(d). Again reflecting the terms of the Directive, s16(1A)(a) provides that the appropriate authority: "shall not grant a licence for any purpose mentioned in subsection(1) unless it is satisfied that, as regards that purpose, there is no other satisfactory solution…."

17

A licence may be "to any degree, general or specific"; it may be granted to a class of persons or to a particular person, and granted subject to compliance with any specified conditions; it is valid for the period stated in the licence. It can be revoked or modified at any time; s16(5). It must specify the species of wild bird to which it applies, the method by which the action is to be taken and be valid for no more than two years.

18

Schedule 1 provides greater...

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