Pheasant poults – buzzard prey or gamebirds?

Facts of the case

The claimant was a gamekeeper managing a number of pheasant shoots in Northumberland. He applied to Natural England on five occasions over a four-year period from 2011–2014 for licences to shoot a small number of buzzards. He alleged they were causing serious damage by killing and disturbing his pheasant poults. All applications were refused. The claimant’s pheasant shooting business is no longer viable and the claimant has stated that this is because of damage caused by the buzzards. ¹

Licensing provisions

Part 1 of the Wildlife and Countryside Act 1981 sets out the legal regime for species protection. In its amended form, it implements the species protection measures required under the Birds Directive. ² Birds as a group have a higher level of protection than other animals under both domestic and European law. Whereas only specifically named animal species are protected, there is reverse listing for birds such that protection exists unless specifically excluded. Some bird species are given greater protection because of their conservation status; the buzzard is not on this list. ³

It is an offence under section 1 to kill or take a wild bird, to damage or destroy its nest when being built or in use or to take or destroy its eggs. No offence is committed if the act is licensed under section 16. Under section 16(1)(k), a licence may be granted to make an action lawful if it is done to prevent serious damage to livestock. Livestock is defined as including ‘any animal kept for the provision or improvement of shooting’. ⁴ Under section 16(1A), licences must not be granted unless the licensing authority is satisfied that there is no other satisfactory solution. Licences can be general or specific and may be granted to a class of person or an individual. ⁵ The licensing authority under the Act is the agriculture minister, ⁶ but this function has been delegated to Natural England under provisions in the Natural Environment and Rural Communities Act 2006. Using powers contained in section 78 of this Act, the Department of Environment, Food and Rural Affairs (Defra) has entered into an agreement with Natural England authorising it to grant licences under section 16 of the 1981 Act.

General licensing policy

Policy for wildlife in England rests with Defra. Its overarching policy at the time of applications was the Defra Wildlife Management Policy of May 2011, ⁷ which covers circumstances under which it might be necessary to control different types of wildlife. There is no specific policy for birds of prey (raptors) and the buzzard does not come under the heading of ‘very rare or endangered species’. The relevant provisions are, therefore, those coming under the heading ‘other protected species’. The heart of the policy is the government’s aim to ‘strike a balance between protecting species…and providing effective solutions to the problems that they cause’. ⁸ There is a clearly stated presumption that wildlife is not killed; most problems are stated to be resolvable using non-lethal methods. Defra’s policy is to issue licences to kill only:

where all other reasonable non-lethal solutions have been tried and/or shown to be ineffective;

The applications

The case was brought against Natural England for its refusal to grant a licence to the claimant in respect of his fifth application but the previous applications were highly relevant to the decision made by Mr Justice Ouseley who devoted much of his judgment to a detailed analysis of Natural England’s decision-making for each application. The important details of the applications relate to the question of serious damage, the possibility of alternative measures and the likely effectiveness of the proposed action. All of the applications were subject to a Technical Assessment by Natural England; in some cases the decision was referred up to director level for a decision. The key details of each application are summarised here.

The claimant’s first application, made in March 2011, was for a licence to kill buzzards at each of five shoots. The draft Technical Assessment recommended granting a licence to kill up to five buzzards. ⁹ It was stated that there was plentiful evidence of serious damage being caused by buzzard predation; reasonable deterrence methods had been tried but were unsuccessful. Nine other measures were rejected as being unrealistic options. It was concluded that killing a few buzzards at poult release sites was likely to contribute to preventing damage. On the face of it, therefore, the application was licensable under Defra’s general policy. Nevertheless, the final Technical Assessment recommended that the application be turned down because some non-lethal alternative approaches had not been tried. The Assessment appraised the application against criteria in Defra’s ‘Wildlife Management in England’ policy statement. The main points are set out below to provide a baseline for comparison with the conclusions on subsequent applications.

The conflict must be sufficiently serious to warrant such action: there is evidence of significant damage…and this is almost certain to be caused by predation by…buzzards.

The least severe solution should be applied in order to resolve the conflict:…there are alternatives that require consideration for the future of both this and other potential cases.

All other less severe methods of resolving the conflict should be shown to be ineffective or impracticable and not just difficult to implement: the applicant has undertaken an extensive range of methods but has not resolved the problem. However there is some scope to do more (e.g. taping and diversionary feeding).

The action is cost effective and proportionate to the actual or potential level of conflict: although not recommended for this season the removal of a very small number of predatory birds is likely to be very effective at resolving the predation issue.

Welfare disease and conservation obligations are met:…the recommendation will improve welfare for the penned birds…buzzard is a widespread species with an increasing population which can withstand limited control measures. ¹⁰

The third application, made in March 2013, was to cage-trap and shoot four buzzards at each of two shoots and six at another one and to destroy nests at one of these shoots. The claimant provided details of the losses suffered and his lack of success with the alternative methods tried. ¹² The Technical Assessment stated that ‘the quantity and quality of information and evidence…provides comprehensive support for the application’. ¹³ The Assessor concluded that there was ‘a high level of evidence of damage’ which Natural England judged to have been caused primarily by buzzards. ¹⁴ It was accepted that returns were low and, from one shoot, were unsustainable. Although some damage might be attributable to other causes, the levels were consistent with that occurring on comparable sites; it was unlikely that improvements in this area would compensate for the losses caused by predation by buzzards. It was acknowledged that the claimant had made considerable efforts to solve the problem with non-lethal methods to deter the birds and had, for the most part, implemented Natural England’s recommendation. The one exception was habitat management, which had yet to be trialled at one site. The Assessor recommended the grant of a licence for one of the shoots to trap and shoot four buzzards and to destroy nests at another shoot but not to license shooting for this shoot because some alternative methods had not been tried and there was insufficient evidence of serious damage. ¹⁵ Following review by a Director, Natural England refused the licence to kill buzzards, but did grant two licences to allow the destruction of four nests.

According to the claimant, permission to destroy nests was not given early enough in the season to have any effect; although nests had been destroyed, this had failed to achieve any noticeable improvement. ¹⁶ A fourth application for a licence to use lethal controls was made in July 2013. The Technical Assessment concluded that it was too soon to be sure that nest destruction was having no effect and noted that, at one site, there was, as yet, no evidence of serious damage. The application was refused. ¹⁷

The fifth application, the subject of the legal challenge, was made in February 2014. It sought a licence to kill small numbers of buzzards at four shoots. The Technical Assessment recommended refusal of a licence to use lethal controls but instead proposed that a licence should be given for live capture and removal of buzzards. The reason for this proposal was to test a theory put forward by the claimant that predation was largely carried out by a small group of buzzards that had specialised in taking poults. The Assessment noted that ‘taking a small number of these birds at each site with the aim of significantly reducing predation is wholly dependent on this theory. If [it] is incorrect, then the removal of only a small number of buzzards is unlikely to reduce predation levels, since these birds would quickly be replaced by others in the wider environment’. ¹⁸ This comment is noteworthy because neither the theory nor its implications had been raised in the other applications and it had previously been accepted that removal of a small number of birds would be effective.

The Technical Assessor justified his recommendation for a licence to remove a small number of birds from three shoots ¹⁹ against the criteria in Defra’s policy. He said that it ‘had been accepted by Natural England that serious damage is being caused and that the most likely cause…is predation of pheasant poults by buzzard’. ²⁰ Licensing was justified against the ‘least severe solution’ test because a variety of non-lethal methods had been tried and shown to be ineffective. ²¹ Furthermore, it was accepted that the claimant had done all that could be reasonably expected in terms of trying alternative methods. ²² The proposed actions were deemed to be proportionate and cost-effective ²³ and were expected to be effective at reducing predation, assuming the claimant’s theory was correct. ²⁴ The welfare of the penned poults would be improved and the buzzard population would be resilient against this small loss of birds. ²⁵

Nevertheless, following a review of the Technical Assessment by a Natural England Director, the application was refused. This decision was again justified by reference to criteria based on Defra’s policy. It was decided that the test of ‘all other reasonable non-lethal solutions have been tried and/or shown to be ineffective’ had clearly not been satisfied because the Technical Assessment had noted that some alternative methods had not been tried, or not tried consistently, or not tried as recommended. ²⁶ It was also questioned whether there really was ‘a genuine problem or need’. Although it appeared difficult to run a viable shoot, poult loss was only one of the reasons contributing to this difficulty. ²⁷ Live capture was rejected as a viable ‘satisfactory alternative’ because it was considered infeasible for a number of specified reasons. ²⁸ The Director also questioned whether the ‘licensed action [would] be effective at resolving the problem and the action [was] proportionate to the problem’. There was clearly no evidence to support the conclusion that removing these birds would effectively resolve the problem; no evidence had been produced to support the view that a small number of birds had specialised in predating on poults. ²⁹

Even a superficial review of Natural England’s approach to these five applications suggests that there are some inconsistencies and that Natural England were ‘simply moving the goalposts’. ³⁰ However, the application failed on the ground of inconsistency in the decisions on the claimant’s applications. Ouseley J accepted that Natural England was entitled to change its mind and what looked like inconsistency might be interpreted as an evolution of thinking. ³¹

Inconsistency or not, Ouseley J had no doubt that there was something seriously amiss with the approach taken by Natural England with respect to these licence applications. To understand these concerns, it is necessary to compare the approach taken here to that applied to applications for licences to use lethal control methods for other species of birds. As will be shown below, there is a marked contrast with buzzards apparently being singled out for special treatment. In order to understand why this should be happening, Ouseley J devoted much of his judgment to an examination of the relationship between Defra and Natural England in the development and application of policy with respect to licences to kill buzzards.

Licences to shoot birds

Natural England receives approximately 10,000 applications for licences a year and has decided over 90,000 applications since 2006. ³² The vast majority of these have been decided on the basis of the Technical Assessment. Only 43 Technical Assessments have been referred to more senior staff for review and the Assessor’s recommendation has not been followed on just three occasions, all applications from the claimant. This fact, in itself, indicates that Natural England thought there was something special about these applications.

Defra’s policy statement on species licensing under Part 1 of the Wildlife and Countryside Act, issued in May 2011 alongside the umbrella general policy, includes guidance for issuing general licences and reveals a stark contrast to the approach taken to licensing of lethal methods to control buzzards. General licences can be granted where an individual licence ‘would impose disproportionate burdens on [the applicant] and the licensing authority that cannot be justified by the conservation benefit yielded by such an individual approach’ or ‘where the actions authorised are not detrimental to the conservation of the native species concerned’. ³³ General licences must be reviewed at least every two years to ensure that there are still no satisfactory alternatives and that the methods licensed remain appropriate. Significantly, there is no requirement for evidence of serious damage by individual birds.

In contrast, at least for the later applications, Natural England appeared to be requiring the claimant not only to show that buzzards were a potential hazard, but also to demonstrate that serious damage had actually occurred. Although the personal circumstances of the claimant were noted by the Technical Assessor, especially in relation to the effort he could be expected to exert on alternative methods for discouraging raptors, the final decisions did not take this into account. It was not disputed that the proposed controls would not have an effect on the conservation status of buzzards. Why, then, did Natural England repeatedly refuse these licence applications?

Policy considerations

Under the legislation and government policy, the reasons available to Natural England for refusing a licence were that there was insufficient evidence of actual or potential serious damage and/or that less severe alternative control methods have been ruled out. Natural England’s decision letters show that both grounds were relied on to varying extents.

In short, it was asserted that there was insufficient evidence to warrant a licence and that extreme care had to be taken to avoid setting a precedent for future applications. Natural England was particularly concerned that it would be difficult to justify the approach taken on buzzards when compared with their approach to licensing for other species. In 2012, Natural England told Defra that it applied ‘widely differing evidence thresholds for different species which could not be adequately justified in terms of policy’. ³⁴ It certainly could not justify the difference on conservation grounds. In 2013, it issued the claimant with licences to shoot herring gull despite the fact that this species had a less favourable conservation status than the buzzard. ³⁵

Instead, Natural England tried to justify the differences by reference to past history. In relation to corvids, for example, it was ‘well established practice and long-standing government policy that the management of several common species is permitted’. ³⁶

Ouseley J did not accept this justification and was of the view that Natural England had, in effect, applied an unstated, or hidden, policy to guide its decision. This amounted to a prohibition on the issue of licences to kill raptors except, perhaps, for exceptional cause. In reaching this conclusion, Ouseley J relied heavily on the correspondence, mainly by e-mail, between Natural England and Defra, its sponsor department.

Natural England did not have an internal policy regarding the issue of licences to kill buzzards or other raptors. However, it did repeatedly ask Defra to issue one. It made these requests because it felt uncomfortable with the large discrepancy between its approach to licences relating to buzzards and that for other birds. While it felt able to treat the application to kill buzzards in the way that it had, it recognised that this did not sit comfortably with the approach it had previously taken regarding other species. It informed Defra that, if there were no special policy considerations relating to raptors that enabled it to distinguish them from other species, it was likely that it would have to apply stricter criteria for determining all licences to be able to continue to justify refusing licensing to kill raptors.

The special policy consideration, although not so termed, was that sanctioning the killing of buzzards was likely to prove highly controversial. Natural England was in a difficult position. Both the Royal Society for the Protection of Birds and the National Gamekeepers Organisation threatened legal action, albeit from opposing viewpoints. ³⁷ Natural England was concerned that the issue was likely to revolve around different sectors of public opinion and sought both clarification and a steer from Defra.

Ouseley J noted Defra officials were singularly unhelpful in their response: ‘I have the firm impression that Natural England did not find Defra’s contribution as clear and specific as it had hoped: indeed that it was more than a little disappointed in it.’ ³⁸ Defra repeatedly referred to the general policy and informed Natural England that it was for them to apply this policy as they felt fit given the evidence provided. At the same time, it was stated that the Minister did not wish to see licences issued for killing buzzards. This gave Natural England no choice if it was minded to refuse the licence application. It could only follow the general policy. This made no reference to public opinion so the decision had to be made on other grounds.

The claimant challenged Natural England’s decision on four grounds which, as noted in the judgment, were closely inter-related. Natural England’s decision was quashed on different aspects of three of these grounds. It was held that the decision was unlawful on the ground that Natural England had reached its decision on the basis of an undisclosed policy while it had purported to rely on the general policy only. The fact that Natural England was applying a hidden policy made it impossible for the claimant to make a case for an exception. ³⁹ This hidden policy related to public opinion and the decision was quashed on the ground that public opinion was unlawfully taken into account. ⁴⁰ It had already been admitted by Natural England that public opinion was an irrelevant consideration and, while Defra did not appear to share this view, their refusal to move from the general policy suggests that they were also aware that public opinion could not be invoked as justification for this matter under either domestic or EU legislation.

It was also alleged that Natural England was inconsistent in its application of Defra’s general policy. Mr Maurici, ⁴¹ acting for the claimant, argued that this inconsistency was shown by Natural England’s grant of licences to the claimant to shoot herring gulls and great black backed gulls, both of which had less satisfactory conservation status, without requiring exhaustive trialling of non-lethal alternative methods. He also cited Defra’s policy for shooting cormorants which is far less exacting. It does not require exhaustive use of non-lethal methods, it allows for licences to be issued where serious damage is likely to be caused and it accepts indirect or circumstantial evidence in support of an application. Ouseley J observed that these differences in approach were very marked and warranted scrutiny. He dismissed Mr Tromans’ argument for Natural England that the 1981 Act was primarily concerned with protecting individual birds not species because this argument did not explain why individual birds of different species should be treated differently. ⁴² While a distinction based on conservation of species might be more acceptable, the facts do not support this ground as it clearly has not been a deciding factor for Natural England. Furthermore, Natural England had failed to show what differences underlay its different approach to buzzards. They had not relied on differences in life span, breeding or mortality to justify the difference. The only feature of difference appeared to have been that diversionary feeding was difficult to implement for cormorants, a species for which there was a specific, less-exacting policy. ⁴³ Finally, on this point, Ouseley J did not think that Natural England’s reliance on its lack of knowledge about buzzard predation on poults could be a rational justification, not least because it amounted to a circular argument. In effect, the approach required the claimant to demonstrate the effect of licensing without having the grant of a licence to provide the test conditions. His view was that ‘the effect of Natural England’s overall approach means that it should refuse all buzzard licence applications, until research has been carried out on the effect of granting licences which it will refuse because it does not know the effect’. ⁴⁴

Ouseley J also dismissed Natural England’s claim that greater scrutiny was required because grant of a licence would create a precedent. He stated that it ‘is irrational, out of a concern to avoid setting a precedent, to apply a test so demanding that applicants cannot meet it, and must all be decided one way, which also actually sets a precedent’. ⁴⁵

In conclusion, on this part of the case, Ouseley J found that the justifications put forward by Natural England were not rational overall and individually were illogical or lacked evidence to support them. They did not amount to a rational basis for the different approach taken in what were essentially similar situations where the same legal and policy tests applied, the conservation status was the same or better, there was no question of the issue of a licence putting that status at risk and the evidence was of a quality that would lead to the grant of a licence for other species. In reality, ‘the substantial reason for the difference in approach was some hostile public opinion, as Natural England recognised long ago, to which Defra shut its eyes’. ⁴⁶

Ouseley J had no difficulty in finding Natural England’s actions unreasonable and quashed the decision on these grounds as well. ⁴⁷ He considered the decision on the 2014 application to be unlawful because it made the application of the derogation so difficult that it was rendered nugatory. He stated that the purpose of the derogation was to enable a balance to be struck between the protection of birds and the prevention of serious damage to agriculture. Natural England’s approach undermined that purpose which was not something that was within its powers. He observed that Natural England found ‘more and more reasons’ ⁴⁸ to refuse with each new application and he found it ‘quite disturbing that, as the problem faced by the claimant grew, so too did the demands of Natural England for evidence proving what it had hitherto appeared to accept’. ⁴⁹ He was persuaded that ‘this decision was not rational unless an element of hostile public opinion was legally relevant, but it is not’. ⁵⁰

The decision was also quashed on a further ground, that there were failures in the way Natural England dealt with the possibility of trapping and removing live buzzards. ⁵¹ Although the claimant had not applied for a licence to do this, it had been recommended in the Technical Assessment. Natural England’s refusal to grant such a licence was unfair and unlawful because, for example, it was unfair of Natural England to make assumptions about the claimant’s ability to implement such a licence without asking him about this first.

The hidden policy

The reasons for Natural England’s decision being quashed all relate to its use of a hidden policy to take account of public opinion. A wish to discuss the issue with Defra was expressed in connection with the first of the claimant’s applications. Natural England noted that the case was novel and challenging given the lack of experience of dealing with such cases. In particular, there was concern that ‘there was no species specific policy guidance on a controversial issue involving the shooting of birds of prey, even more so to protect non-indigenous game birds reared for shooting’. ⁵² The situation clearly made Natural England uneasy for obvious reasons: could it really be an appropriate use of a derogation from species protection law to licence the killing of a British bird to prevent it taking its prey in order to facilitate the shooting of this prey by someone else, especially when the prey was not even native to the country? Natural England thought that the general policy gave insufficient clarity for dealing with this scenario.

Natural England informed Defra of its concerns and noted that there was a distinct possibility that it would be called upon to explain why it would not issue licences to shoot buzzards when it had licensed shooting of gulls. It told Defra that the real difference was cultural and political which made it difficult to frame a reason within a ‘policy for objectively and fairly determined licences’. ⁵³ Defra agreed that this was a sensitive issue, but stated that there would be no raptor-specific policy. ⁵⁴ The Minister had confirmed that the existing policy was to be applied. However, Defra went on to urge Natural England to note the strong steer from the Minister that gamekeepers should be encouraged to explore alternative solutions so that there would be no need to shoot raptors. The Department also asked Natural England to discuss any proposed licences with them. Subsequently, Defra informed Natural England of a further steer from the Minister which confirmed that raptor licence applications were to be treated in the same way as applications for other birds, but then went on to say that, given a good case for control, non-lethal options should be licensed but ‘buzzards were not to be killed’. ⁵⁵ The assumption within Defra appears to have been that licences could be refused on the basis of lack of evidence or failure to try alternative methods.

Following further exchanges with Natural England, Defra officials approached the Minister again suggesting two possible options. ⁵⁶ The first option was to accept that, under the current policy, it could, and possibly might, issue licences to kill buzzards. The second option was to revise the policy and make raptors an exceptional case so that the issue of licences only occurred under exceptional circumstances. The Minister remained convinced that the existing general policy was adequate for purpose and confirmed that buzzards were not to be treated as exceptional. Defra’s concluding remarks were that it was for Natural England to demonstrate that it is applying the policy consistently if it is challenged. ⁵⁷

Things had not improved by the time the second application had been made. Internal e-mails in Natural England reveal a level of frustration with Defra, reporting that ‘although publicly Defra have said they want us to treat raptor applications just like any other applications we know they did not want licences issued…the policy team position from the outset has been not over my dead body will a raptor be killed under licence’. ⁵⁸

Given such a steer from Defra, Natural England might have decided to apply the same high evidential standards to other species with the result that far fewer licences would have been granted. Instead it tried, unsuccessfully, to argue that there was no inconsistency in their approach. Why they chose this line of action is unclear. There can be little doubt that, even if they were convinced of the arguments they used to justify their decisions, they were also aware that public opinion was an influencing factor. They knew it was legally irrelevant, but obviously thought it was relevant for the implementation of the policy in practice. The prospect of having to consider applications for all other bird species with the same level of stringency may also have been judged to be daunting and disproportionate.

Discussion and conclusions