The Queen (on the application of The Royal Society for the Protection of Birds) v Natural England
| Jurisdiction | England & Wales |
| Judge | Lord Justice Phillips,Lord Justice Newey,Lord Justice Underhill |
| Judgment Date | 09 November 2021 |
| Neutral Citation | [2021] EWCA Civ 1637 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Appeal Nos: C1/2019/0752 and C1/2019/0783 |
[2021] EWCA Civ 1637
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEENS BENCH DIVISION ADMINISTRATIVE COURT
MRS JUSTICE LANG
[2019] EWHC 585 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal, Civil Division)
Lord Justice Newey
and
Lord Justice Phillips
Appeal Nos: C1/2019/0752 and C1/2019/0783
David Forsdick QC (instructed by RSPB Legal Services) for the Appellant in C1/2019/0752
David Wolfe QC and Zoe Leventhal (instructed by Leigh Day) for the Appellant in C1/2019/0783
Paul Luckhurst (instructed by Natural England Legal Services) for the Respondent in both appeals
Hearing dates: 27 and 28 January 2021
Approved Judgment
Following a reserved judgment handed down on 15 March 2019, Lang J (“the Judge”) dismissed judicial review claims brought by the Royal Society for the Protection of Birds (“the RSPB”) and Dr Mark Avery (a scientist who worked for the RSPB until 2011) against Natural England, an executive non-departmental public body sponsored by the Department for Environment, Food and Rural Affairs (“DEFRA”). The claims, brought separately but heard together, challenged the lawfulness of the grant by Natural England, on 16 January 2018, of a licence to “take and disturb” birds listed in Schedule 1 to the Wildlife and Countryside Act 1981 (“the 1981 Act”), namely, hen harriers, for scientific, research or educational purposes pursuant to section 16(1)(a) of the 1981 Act (“the First Licence”). The specific activity in question was a scientific trial of brood management of hen harriers in the northern English uplands, the licence covering the first two years of a proposed 5-year trial. Absent a licence under section 16(1), the interference with hen harriers, their nests or their eggs inherent in such management would be a criminal offence under section 1 of the Act.
The RSPB and Dr Avery appealed that decision, with permission from Newey LJ granted on 10 October 2019, challenging the Judge's rejection of two of the several grounds on which the claims were advanced. In summary:
i) both appellants contended that the Judge should have held that Natural England (as the appropriate licensing authority) failed to satisfy itself, as required by section 16(1A) of the 1981 Act, that there was no other “satisfactory solution” as regards the purpose for which the licence was granted. They contend that section 16(1A) required consideration of alternative solutions to brood management to achieve the ultimate purpose of the scientific trial, namely, the conservation of hen harriers, whereas the Judge wrongly held that such consideration was limited to alternative means of obtaining the evidence the trial was designed to elicit, namely, the effectiveness and practicalities of brood management as a conservation technique for hen harriers;
ii) the RSPB contended that the Judge should have held that brood management in Special Protection Areas (“SPAs”), permitted under the terms of the licence, would defeat certain of the Conservation Objectives for SPAs by internally displacing hen harriers and constraining their population, adversely affecting the integrity of the site contrary to regulation 63 of the Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations”). The RSPB further contended that the Judge should have found that Natural England failed to carry out a proper assessment of the effect brood management would have on the integrity of the SPAs.
The hearing of the appeals commenced on 17 March 2020 before a different constitution of this court, but had to be aborted due to the ill-health of one of its members. Subsequently, on 20 May 2020, Natural England granted a further licence to permit the continuation of the brood management trial to 30 September 2021 (“the Second Licence”) in similar terms to the First Licence, but with some changes to the conditions imposed.
The appellants did not issue fresh proceedings to challenge the Second Licence, instead inviting this court to determine the issues raised by the existing appeal on the basis that such determination would effectively, if not directly, resolve the question of the lawfulness of the Second Licence (and inform any decisions as to the grant of similar licences in the future). Natural England took the point that the appeals in respect of the First Licence had become academic as the First Licence had expired and had been superseded by the Second Licence, but ultimately did not object to the appeal proceeding on the basis proposed by the appellants. In the event, the parties focused their arguments on the terms of the Second Licence, to the limited extent that they differed in any relevant respect from those of the First Licence.
The background facts
The relevant background was set out in detail by the Judge in her judgment. The following summary of the facts pertinent to these appeals is drawn primarily from that account.
(a) Hen harriers and their habitat
Hen harriers are birds of prey, breeding widely across Eurasia and North America. In England, hen harriers nest mainly in the northern moorlands among the heather to be found, in particular, on grouse moors, but their numbers have long been in serious decline, to the brink of extinction. In 2016 there were only four pairs in England, of which only three bred successfully 1.
Due to their rarity and vulnerability, hen harriers have the highest level of protection, summarised by the Judge as follows:
i) they are listed in Annex 1 of the Birds Directive (2009/147/EC) as a species which is particularly threatened in Europe. As a result, member states are required by Article 4 to take “special conservation measures” in order to ensure their survival and reproduction, and designate SPAs for their conservation;
ii) they are a species of principal importance for biodiversity conservation in England, under section 41 of the National Environment and Rural Communities Act 2006;
iii) they are protected under Schedule 1 of the 1981 Act;
iv) the species is classified as “red” (denoting the highest level of concern) in the Birds of Conservation Concern 4 list, drawn up by bird conservation organisations.
(b) The problem
One of the main causes for the breeding failure by hen harriers in England is persecution, accounting for almost all nesting failures in driven grouse moors (other than in the Bowland Fells SPA). The persecutors are believed to be gamekeepers and others working on driven grouse moors, illegally killing hen harriers, destroying or disturbing their nests and taking eggs in order to reduce the number of birds preying on
red grouse chicks (which adult hen harriers feed to their young during their breeding season) so as to maximise the number of grouse available for shooting in the autumn. A further aim of such illegal activity may be to limit the extent to which hen harriers overfly shoots, depressing the number of grouse taking flight.(c) The potential solutions
The obvious and direct response to the criminal conduct involved in persecution of hen harriers is the investigation and prosecution of offences under section 1 of the 1981 Act. The Judge summarised at [16] of her judgment the assistance Natural England provides to the police forces responsible for investigation of such offences, including satellite tagging of hen harriers, assisting in searches for missing birds and the provision of forensic technologies. However, as summarised by the Judge at [17], criminal enforcement efforts have had limited effect. Given the extensive area over which hen harriers can nest, comprehensive surveillance of nests is impossible. Even where the disappearance of a hen harrier or a nest is detected at the time (and often it is not), finding evidence that a crime has been committed (rather than death or destruction by natural causes) is difficult. Even if there is evidence of a crime, identifying the perpetrator will be highly problematic.
Dr Avery contended that enforcement would have more effect if landowners were made vicariously liable for wildlife crimes committed by their employees, but as Natural England pointed out in evidence before the Judge, such liability could only arise if the guilt of the primary perpetrator could be established and would not assist with the considerable difficulties in that primary exercise.
The alternative approach to enforcement is to take steps to reduce the conflict between the hen harrier population and the grouse shooting industry. One technique, diversionary feeding, involves providing hen harriers with food supplies as alternatives to grouse chicks. Diversionary feeding has had considerable success in Scotland and has been licensed by Natural England for use in specified northern counties in England, but despite promotion by Natural England and the Moorland Association, take-up has been minimal. The Judge explained at [18] that possible reasons include cost and inconvenience and a concern that the presence of the diversionary food would attract other predators. Although Natural England has some power to require diversionary feeding, that power is limited to Sites of Special Scientific Interest (“SSSIs”) where hen harriers were among the features of special interest and, in any event, it is difficult to identify when and where nesting is taking place and to issue an enforcement notice in time to put diversionary feeding in place.
Brood management is a potential further technique, identified and discussed in scientific literature, for reducing the conflict. Once hen harrier nests reach a certain density in...
To continue reading
Request your trial