Wild Justice v Natural Resources Wales
| Jurisdiction | England & Wales |
| Judge | Jarman |
| Judgment Date | 18 January 2021 |
| Neutral Citation | [2021] EWHC 35 (Admin) |
| Date | 18 January 2021 |
| Docket Number | Case No: CO/1370/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 35 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Cardiff Civil and Family Justice Centre
2 Park Street, Cardiff, CF10 1ET
HH JUDGE Jarman QC
Sitting as a judge of the High Court
Case No: CO/1370/2020
and
and
Mr David Wolfe QC and Ms Anita Davies (instructed by Leigh Day) for the claimant
Mr Timothy Corner QC and Ms Heather Sargent (instructed by BDB Pitmans LLP) for the defendant
Sir James Eadie QC and Mr Richard Moules (instructed by The Government Legal Department) for the first interested party
Mr David Elvin QC and Mr Mathew Dale-Harris (instructed by Field Fisher LLP) for the second interested party
Mr Malcolm Birdling for the intervenor
Hearing dates: 18 December 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HH JUDGE Jarman QC
HH JUDGE Jarman QC:
Introduction
Killing, injuring or taking wild birds is a criminal offence in the United Kingdom. Some species, however, can pose a threat to livestock or crops, or public health, or to other wild birds. For example, carrion crows, of which there are about 20,000 pairs in Wales, prey upon the eggs and chicks of ground nesting birds, such as curlews, of which there are less than 400 pairs left in Wales. One of the ways in which the law seeks to balance differing interests is to authorise appropriate authorities to issue licences to kill or take wild birds posing such threats where there are no other satisfactory solutions.
National Resources Wales (NRW), which is the appropriate authority for Wales, issued three general licences (the licences) for the year 2020. The claimant Wild Justice (WJ), which promotes nature conservation, takes issue with those licences. Mr Wolfe QC with Ms Davies, counsel for WJ, accept that the killing or taking of wild birds is necessary in some circumstances, as in the example given above, of crows to protect curlews, but argue that the licences are too broadly worded so as to allow casual killing of large numbers of wild birds unnecessarily and are accordingly unlawful.
The licences are given the prefixes GL for general licences and then numbers 001, 002 and 004. Each states in paragraph 1 the purpose for which it is given, respectively for preventing serious damage or the spread of disease to livestock, foodstuffs for livestock, crops, vegetables or fruit (001); for preserving public health and preventing the spread of disease to humans (002); or to conserve wild birds (004). WJ takes particular exception to the former and latter licences.
Mr Corner QC with Ms Sargent, on behalf of NRW, submit that the licences only authorise action where there is a present risk to the stated interests. Thus, in the example given above NRW accepts that the relevant licence (004) should be used only to kill crows during the months between egg laying and when the chicks are well grown, namely April to July, and only in those areas where curlews nest, which do not extend to urban areas. It should not permit someone to kill a crow in the autumn or in an urban area on the basis that that bird might someday at some place take a curlew's egg or chick. NRW has decided not to set out this level of detail in the licences, saying that it is for the licensee to show by objective evidence that an egg or chick was at real risk to justify the killing, and it is for the criminal courts to assess the evidence in any given case. NRW says that it is a matter of judgment for it as the appropriate authority in Wales to decide on the appropriate level of detail set out in the licences.
Each licence permits authorised persons for the stated purpose to kill or take one or more of six species of wild bird as specified in the licence, namely carrion crow, magpie, jackdaw, feral pigeon, wood pigeon and Canada goose. An authorised person is defined in each licence as the owner or occupier, or anyone authorised by them, of the land on which the action authorised is taken, or any person authorised in writing by named bodies such as local authorities, the Welsh Ministers, conservation bodies and NRW. The licences set out the weapons, traps and nets which may be used. In the licence for conserving wild birds, it is provided that the licence is granted to conserve only the chicks and eggs of species of bird listed, of which there are almost 150, not all of which are commonly found in Wales.
The licences set out detailed conditions as to use, including that the licences do not authorise any action within listed protected sites or within a buffer zone surrounding such sites. A long list of Sites of Special Scientific Interest, Special Protection Areas, and Special Areas of Conservation are annexed to the conditions. There are notes attached to each licence, note 3 of which provides that failure to act within the purpose of the licence as set out in paragraph 1 or failure to comply with any of the conditions of the licence may mean that the licence cannot be relied upon and an offence may be committed. Note 7 provides that the licence may be modified or revoked at any time.
Although the licences have now lapsed, NRW has or will issue similarly worded licences for the year 2021. There was no evidence before me that the licences have led to widespread unnecessary killing of wild birds or prosecutions in that regard.
NRW is supported by the first interested party in these proceedings (SofS) who is interested in how these proceedings may affect licencing in England. Sir James Eadie QC with Mr Moules on behalf of SofS say that it is a matter for each authority what licences to issue and how to word them, and different authorities may come to different views. SofS does not agree or disagree with NRW's view of what its licences permit.
The second interested party (BASC), represented by Mr Elvin QC and Mr Dale-Harris, has some 6,500 members in Wales and acts as a representative body for responsible and sustainable shooting. It also seeks to uphold NRW's licences, although it does not agree with all of the evidence filed on its behalf as to precisely what the licences permit. The National Farmers Union (NFU) has 55,000 members in Wales and England and was permitted to intervene on the basis of written representations only, which were submitted by Mr Birdling. NFU supports NRW's opposition to the grounds of review, but makes representations only on the third ground.
The grounds of challenge
There are three grounds of challenge, in respect of which permission to bring judicial review proceedings was granted by Griffiths J on consideration of the papers. The first two grounds involve the particularity of the licences, and the third ground relates to the evidence upon which NRW made its decision to grant the licences.
Ground 1 of the challenge is that each licence should have specified the circumstances in which it may be used. WJ contends that without the licences specifying limits of time and space, the killing or taking of some wild birds may be authorised when such control is unnecessary. In the example given above, the licence should be limited to the nesting seasons and to the areas where nests are located.
Ground 2 is that a general licence is not appropriate where NRW could not satisfy itself that there are no other satisfactory solutions on each occasion that the licence is used. WJ contends that such a licence should be conditioned to limit its use to where NRW can be satisfied that appropriate solutions have been considered to try to fulfil the stated purpose prior to use of the licence. To put it another way, the contention is that every time the licence is used killing or taking must be as a last resort.
Finally, in ground 3 WJ contends that as such licences are granted under a framework of limited derogations from the general prohibition on the killing or taking or wild birds, such derogations are only lawful if properly justified. This means that positive evidence is required to justify derogations, and not just an absence of evidence pointing to other satisfactory solutions.
Written evidence was filed on behalf of WJ by one of its directors, Dr Mark Avery, on behalf of NRW by one of its managers Dr Sarah Wood, and on behalf of BASC by Glynn Evans, one of its heads. Whilst there was some disagreement between Dr Avery and Dr Wood, there was little if any difference between them on how the licences given for the purposes stated in them should work in practice. Mr Wolfe made it clear that WJ welcomed such clarification but submits that these clarifications should have been expressly imported into the wording of the licences. He points to the fact that Mr Evans interprets the licences more widely than NRW, and submits that that is a cogent reason why the licences should specify the circumstances of their use in greater detail.
The legal framework
The origins of the law of the UK in this area is to be found in European law, namely Council Directive on the conservation of wild birds 79/409 EEC. The current legislation is set out in Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (the Directive).
Article 1 of the Directive sets out its applicability:
“1. This Directive relates to the conservation of all species of naturally occurring birds in the wild state in the European territory of the Member States to which the Treaty applies. It covers the protection, management and control of these species and lays down rules for...
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