UPDATE: Wild birds and licences

This article focuses on action you need to take to stay within the law if you are controlling wild birds to prevent serious damage to livestock, feedstuffs, crops, fruit etc., previously covered by General Licence 04.

The legal position

The basic position is that the planned shooting or taking of wild birds to prevent serious damage will be unlawful unless one of the following three conditions is met:-

(1) the activity falls under any new general licence that has been issued – as of 2 May the only general licence available is for carrion crow control, and for the protection of a restricted range of livestock/reared game; or

(2) you have an individual licence to kill or take birds not covered by the new general licences; or

(3) you have applied for an individual licence and fall within the exception contained in s4 of the Wildlife & Countryside Act 1981. This exception provides a defence to criminal liability.

The scope of the s4 exception is limited.

• Any action to control wild birds must be limited to the species named in your licence application, and not include any “Schedule 1” species (buzzards, harriers, white-tailed eagles, red kites etc.) – these enjoy additional protection.
• The action must be for the purpose set out in your licence application.  
• You must notify Defra (at birds2019@naturalengland.org.uk) as soon as reasonably practical that you have taken action.
• You must be able to show that killing/taking the birds was the only satisfactory solution to prevent serious damage.  

There is also a narrow exception for action taken in an emergency, but this is unlikely to come into play in the case of planned pest control activity.

Implications for Shooting Agreements

The majority of written shooting agreements include the right to kill some or all of the species previous covered by the general licences (GL04-05-06), revoked by Natural England on 25 April. But in most agreements that right is explicitly subject to the killing of such birds being “for the time being” lawful. As from 25 April, in the absence of one of the three conditions set out above the planned killing of non-quarry species will generally be unlawful. There are some narrow exceptions e.g. in some circumstances where an official order requires action to be taken.

Technically, then, not only could those killing or trapping pest birds under a shooting agreement be breaking the law, they could also be in breach of the express provisions of their shooting agreement. 

There could also be implications for insurance, where policies generally exclude illegal activities from cover.

Before allowing others on your land to shoot wild birds you should:-

• check that they are up to date with the new restrictions and have individual licences if necessary (i.e. if you do not have one and there is no general licence in force);
• make sure you give them written authorisation to act. We would recommend that any authorisation gives details of the person/people authorised, sets out the purpose of the control and why it is necessary;
• make clear on the written authorisation that your permission is subject to them acting within the law at all times.

Licensees

If you have livestock or crops on someone else’s land as a licensee, rather than under a formal tenancy, you should ensure that you have the owner’s consent in writing before shooting wild birds under licence. If the SSSI/Ramsar status of the land means that additional consent is needed from Natural England you will also need to ask the owner to apply for that consent.

Conclusion

The Natural England changes cut across longstanding wild bird control practices on farms and shooting estates and have made many previously permitted activities illegal without, as a minimum, an individual licence being applied for. We trust that new, and clearly defined, general licences are put in place quickly to minimise the disruption, cut through the confusion and make sure that agreements entered into on the basis of previous general licences are not brought into question.

If you have any questions arising from this article, please do get in touch with us here at Roythornes. We have a wealth of experience in drawing up shooting agreements and in defending wildlife crime cases.