R (Royal Society for the Protection of Birds) v Natural England [2019] EWHC 585 (Admin)

R (Royal Society for the Protection of Birds) v Natural England [2019] EWHC 585 (Admin) concerned challenges by judicial review to a licence granted by Natural England on 16 January 2018 for a trial of hen harrier brood management under section 16(1)(a) of the Wildlife and Countryside Act 1981. Mrs Justice Lang dismissed both claims.

The Royal Society for the Protection of Birds, a registered charity promoting bird conservation, and Dr Mark Avery, a scientist and nature campaigner, challenged the lawfulness of the licence. Natural England is an executive non-departmental public body responsible for promoting nature conservation and managing wildlife, sponsored by DEFRA. The hen harrier is in severe decline in England, nearing extinction, and enjoys the highest level of statutory protection. Hen harriers are listed in annex 1 of the Birds Directive as particularly threatened, are a species of principal importance under section 41 of the Natural Environment and Rural Communities Act 2006, are protected under schedule 1 to the Wildlife and Countryside Act 1981, and are classified as red (highest concern) in the Birds of Conservation Concern 4 list. There are two special protection areas in England: Bowland Fells and North Pennines Moors.

Hen harriers nest on moorland heather in grouse moor habitat and feed grouse chicks to their young, causing economic damage to the grouse shooting industry. The main threat to their conservation is unlawful persecution through killing and nest destruction by those associated with grouse moors, notwithstanding the species’ protected status. The proposed trial sought to manage the conflict by removing eggs and chicks from nests, rearing them in captivity, and releasing fledglings into suitable habitat away from grouse moors.

In 2016 DEFRA established a group which published a Joint Action Plan in January 2016 proposing six measures, including a trial of brood management licensed under section 16(1)(a) to assess whether it would improve harrier numbers in the uplands while protecting the economic viability of moors. An application for a licence was submitted on 13 February 2017. Natural England completed a Technical Assessment and a Habitats Regulations Assessment under regulation 63 of the Conservation of Habitats and Species Regulations 2017. The Chief Operating Officer approved the licence on 10 January 2018.

According to the Technical Assessment, the application was for a trial to obtain evidence about the effectiveness of brood management for hen harriers affected by illegal persecution, evidence which did not then exist, so the application could be considered under the science, research and education purpose in section 16(1)(a). The main aims were to investigate the effect on perceptions and behaviour of the moorland community (the social science aspect) and to test the practicalities of captive rearing and release (the practicality aspect). The Assessment acknowledged the high risk given the small and vulnerable population and concluded stringent conditions would be required. The Habitats Regulations Assessment considered the hypothesis that reducing conflict during chick provisioning would increase breeding productivity and reduce non-breeding mortality through cessation of illegal persecution. It concluded mitigation was provided by an exit strategy and the time-restricted nature of the trial.

The RSPB and Dr Avery challenged the decision on multiple grounds. Ground 1 (both claims) asserted that Natural England misapplied section 16 by treating the licence purpose solely as research under subsection (1)(a) and not including conservation of hen harriers under subsection (1)(c). The claimants submitted the ultimate purpose was conservation and the trial could not be separated from any subsequent roll-out. They contended the licensing authority had to be satisfied under section 16(1A) that there was no other satisfactory solution for conserving hen harriers, pointing to diversionary feeding as an alternative and to the failure to consider effective enforcement of criminal sanctions. Mrs Justice Lang rejected this ground. She held that the statutory language required the authority to consider whether there were other satisfactory solutions to the specific scientific purpose under section 16(1)(a), not any other purpose. Natural England was correct to consider whether the proposed trial could deliver against its scientific purpose and whether there were other means of obtaining that evidence. There was a meaningful distinction between a scientific licence and a general licence; the trial would gather evidence but Natural England had not concluded that brood management would be part of the conservation solution. If the evidence was negative or equivocal, there might never be an application for a licence under section 16(1)(c). The judge found no evidence supporting the submission that Natural England sought to circumvent the statutory purpose; the evidence showed Natural England had acted conscientiously. The decision to grant a conservation licence would be a further independent and challengeable decision under section 16(1)(c).

Ground 2 (RSPB claim) challenged the decision to run the trial in England rather than Scotland, where the population is higher and less vulnerable. The judge held that Natural England had expressly considered this issue in the Technical Assessment and reached a rational conclusion that the trial must be carried out in the English uplands to determine the effect on human perceptions and behaviour and the impact on the English hen harrier population. Natural England exercised its statutory powers lawfully.

Ground 3 (RSPB claim) alleged the licence had been granted when the aims, methods, monitoring and evaluation of the research were inchoate. The judge rejected this characterisation of the evidence. There was a detailed Project Plan submitted and carefully assessed. The Technical Assessment set out the aims and objectives in detail. The methodology was considered and the investigators found suitably qualified. Natural England conducted a rigorous assessment; the initial plan was rejected as insufficiently detailed and only the final plan was accepted. Additional Condition 2 required approval of the scientific advisory group and a plan of research aims, methods, monitoring and evaluation before licensed activity could take place. The condition was an additional safeguard, not evidence of inadequacy. Natural England had identified and assessed the aims, methods, monitoring and evaluation prior to grant.

Ground 4 (RSPB claim) asserted the licence conditions did not achieve their stated purpose. The judge accepted Natural England’s evidence that the scheme of care was adequately secured, that Additional Condition 2(b) requiring approval of a plan was adequate to ensure a methodological approach, and that compliance could be secured by monitoring and the powers to modify or revoke the licence under section 16(5)(d).

Ground 5 (RSPB claim) argued the licence was contrary to section 16(5A)(c) because the research required at least five years whereas a licence was limited to two years. The judge held there was no basis for reading into section 16 a restriction of two years on the length of any research project; the restriction was on the duration of the licence, not the project. There was no restriction on successive licences and many licences were renewed in practice. Additional restrictions on duration and extent of research could be inconsistent with articles 9 and 10 of the Birds Directive.

Ground 6 (RSPB claim) submitted that the scheme would displace a protected species from major parts of SPAs designated for their conservation, contrary to the statutory purpose. The judge held it was clear from the evidence that Natural England’s purpose was to further the conservation of hen harriers through research, not to protect grouse chicks or the grouse moor industry, and thus was not inconsistent with the purpose of the SPAs. The licence area was much wider than the two SPAs. Natural England assessed the risks to conservation objectives when deciding whether to grant the licence. It considered the risk to adult bird site loyalty and judged this mitigated by Additional Condition 13 preventing successive brood management of the same pair. It assessed that captive-reared chicks would have higher survival prospects than wild chicks vulnerable to predation, persecution, weather and food shortages. Additional Condition 12 required birds taken from an SPA to be released back within the same SPA. The density threshold for intervention safeguarded the number of chicks in the SPAs. The primary protection for SPAs was article 6(3) of the Habitats Directive and regulation 63 of the Habitats Regulations 2017, and Natural England was entitled to conclude in the light of the Habitats Regulations Assessment that the trial would not adversely affect the integrity of the two SPAs.

Ground 7 (RSPB claim) challenged Natural England’s conclusion that there was no adverse effect on site integrity, arguing it misdirected itself on the appropriate tests and failed to conduct the requisite assessment, failing to take account of displacement of hen harriers from the SPAs. The judge held the criticisms of the Habitats Regulations Assessment fell well short of establishing any breach of regulation 63 or article 6(3). The impact on both SPAs was considered in sufficient detail. The Assessment concluded overall mitigation was provided by the exit strategy and time-restricted nature of the trial. The judge rejected the submission that mitigation was discounted because it would prevent the trial; the analysis was of what mitigation was necessary to conclude no adverse effect. The starting point was a current population of effectively zero and long-term failure to meet target levels. Under the licence no adult birds would be removed and improved survival prospects of chicks would likely increase the SPA population. The assessors gave a summary that the project could, if successful, contribute towards recovery; with appropriate conditions reflecting conservation objectives, no adverse effect on site integrity could be ascertained. The displacement of hen harriers from SPAs was not assessed because displacement was neither the purpose nor the effect of the trial. No adult birds would be removed, restrictions applied to egg removal, chicks would have better survival prospects and would be returned as fledglings, satellite tagging would monitor dispersal, survival and productivity, and the scheme could be halted if unforeseen problems arose. This was a temporary trial, not a permanent scheme. These facts were distinguishable from authorities cited concerning permanent habitat alteration by major building developments resulting in permanent displacement. The Habitats Regulations Assessment was an appropriate assessment reaching lawful conclusions.

Ground 2 (Dr Avery claim) alleged the scheme was disproportionate because trial conditions differed from those which would apply in any wider roll-out, making the trial worthless, and because doubtful benefits were disproportionate to the risk. Dr Avery submitted the trial would test brood management only where the threshold of two nests within ten kilometres was met, predicted to reduce the local grouse population by three to five per cent, whereas the Joint Action Plan aimed to remove broods once density would impact significantly on grouse numbers, usually taken to be an impact of ten per cent or more, requiring two nests within seven kilometres or less. He argued there was no evidence the population would rise to that level without other conservation measures, rendering the trial pointless. The judge held this challenge was too speculative. The Technical Assessment explained the scientific model recommended starting from low density to allow for uncertainties in modelling and because grouse managers favoured building up from low densities. Natural England had not reached firm conclusions as to the density or damage level that would justify wider roll-out following a successful trial; that would be determined if an application was made in light of trial results. Natural England expressly considered this issue and concluded the actions were proportionate despite the lower threshold. The submission that populations could not reach the higher threshold without alternative measures was too speculative, as other measures were already in operation and the density threshold could be met if nests clustered locally. The allegation that the trial could not meet its research objective at lower density was not the view of the researchers, acknowledged experts in the field, who recommended a precautionary approach. When deciding to grant the licence Natural England was satisfied the trial would sufficiently contribute to providing the evidence and knowledge required. On the question of risk, Dr Avery correctly quoted the Technical Assessment’s initial assessment of high risk, but it went on to consider risks in detail and concluded the actual level would be managed by the proposals, licence conditions and recommendations. Taking into account evidence of severe decline and the failure of other conservation measures, the judge was satisfied Natural England was correct to conclude the trial was appropriate to achieve the objective of contributing to knowledge needed for possible brood management and could not be achieved other than by such a trial. Natural England was entitled to exercise its discretion as to the terms and operation lawfully; its conclusions were both rational and proportionate.

In short, Natural England lawfully granted the licence for a scientific trial under section 16(1)(a) of the Wildlife and Countryside Act 1981, properly considered alternatives to the research purpose, assessed risks including under the Habitats Regulations, imposed stringent conditions to mitigate identified risks, and reached a proportionate decision consistent with the conservation objectives of the relevant special protection areas.

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