R v Natural England: Upholding Brood Management Licensing in Wildlife Conservation
Introduction
The case of The Royal Society for the Protection of Birds, R (On the Application Of) v Natural England ([2021] EWCA Civ 1637) represents a significant judicial examination of wildlife conservation practices, particularly concerning the management of endangered species. The Royal Society for the Protection of Birds (RSPB) and Dr. Mark Avery challenged Natural England's grant of a licence under the Wildlife and Countryside Act 1981 to undertake brood management of hen harriers. This legal battle centered on the balance between conservation objectives and regulatory frameworks governing wildlife protection.
Summary of the Judgment
The initial judicial review by Lang J dismissed the RSPB and Dr. Avery's claims against Natural England. The appellants appealed, arguing that Natural England failed to consider alternative conservation methods and improperly assessed the impact on Special Protection Areas (SPAs). The Court of Appeal upheld the original decision, affirming that Natural England appropriately applied the Wildlife and Countryside Act 1981 and the Birds Directive. The court concluded that brood management, as a licensed scientific trial, did not unlawfully infringe conservation objectives, provided adequate assessments and conditions were met.
Analysis
Precedents Cited
The judgment extensively referenced the Birds Directive (2009/147/EC) and its implementation through the Wildlife and Countryside Act 1981. Notably, the Court considered precedents such as R (McMorn) v Natural England [2016] Env LR 14 and the CJEU's decision in the Finnish Wolves case C-674/17. These cases underscored the necessity for Member States to rigorously assess derogations under the Directive, balancing species protection with human interests.
Additionally, the court considered interpretations from cases like Sweetman v An Board Plean la [2013] and RSPB v SSEFRA and BAE [2015] EWCA Civ 227, which clarified the meaning of "integrity" of protected sites and the requirements for conservation objectives under the Directive.
Legal Reasoning
The core legal issue revolved around whether Natural England appropriately exercised its discretion under section 16(1)(a) of the 1981 Act to grant a licence for brood management, a practice that involves the removal and captive rearing of hen harrier chicks. The appellants argued that Natural England failed to explore satisfactory alternative conservation methods, such as diversionary feeding, and that the brood management trial adversely affected SPAs.
The court held that the "purpose" under section 16(1)(a) was specifically scientific research to gather evidence on brood management's efficacy, distinct from broader conservation efforts under section 16(1)(c). Consequently, Natural England was obligated to assess only alternative methods for achieving the research objectives, not alternative conservation strategies. Furthermore, the court found that the Habitat Regulatory Assessments (HRAs) conducted by Natural England adequately addressed potential impacts on SPAs, ensuring that the trial did not violate conservation objectives.
The judgment emphasized the structured discretion granted to Natural England, provided that decisions align with legislative frameworks and uphold the overarching objectives of the Birds Directive and the Wildlife and Countryside Act.
Impact
This judgment reinforces the authority of environmental agencies like Natural England in balancing scientific research with conservation laws. By upholding the licence, the Court of Appeal has set a precedent that permits innovative conservation techniques, such as brood management, provided they undergo rigorous assessment and comply with statutory requirements.
Future cases involving derogations under conservation directives will likely reference this judgment to understand the scope of permissible licenses and the necessity of targeted assessments. Additionally, the decision may influence policy-making, encouraging the exploration of alternative conservation methods backed by empirical evidence.
Complex Concepts Simplified
Derogations under the Birds Directive
Derogations refer to exceptions allowing certain activities that would typically breach wildlife protection laws, provided no satisfactory alternative exists. In this case, brood management was permitted under a derogation for scientific research, aiming to find effective conservation methods for hen harriers.
Special Protection Areas (SPAs)
SPAs are designated zones aimed at protecting particular bird species and their habitats. The integrity of an SPA concerns maintaining its ecological characteristics and conservation objectives, ensuring that any permitted activities do not undermine these goals.
Habitat Regulatory Assessments (HRAs)
HRAs evaluate the potential impact of specific projects or activities on designated habitats and species. They ensure that any proposed actions comply with conservation laws and do not negatively affect the ecological balance of protected areas.
Conclusion
The Court of Appeal's decision in The Royal Society for the Protection of Birds, R (On the Application Of) v Natural England underscores the judiciary's recognition of the necessity for conservation bodies to conduct scientifically grounded, legally compliant operations. By affirming Natural England's licensing of brood management, the judgment highlights the importance of adaptive conservation strategies within established legal frameworks. This case serves as a pivotal reference for future endeavors aiming to balance wildlife protection with innovative research methodologies, ensuring that conservation efforts remain both effective and legally sound.
Note: Since the hearing of the appeal, Natural England and the RSPB reported that hen harriers had their most successful breeding year in England in over a decade in 2021, with 84 young fledged from 31 nesting attempts.
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