“16(4) The following provisions, namely— (a) section 6(1) and (2); (b) sections 9(5) and 13(2); and (c) sections 14 and 14ZA, do not apply to anything done under and in accordance with the terms of a licence granted by the appropriate authority.”
“a key premise for the prohibitions within section 14 is that it is only introductions into “the wild” that are regulated. In principle, we would define “the wild” as being: “the diverse range of natural and semi natural habitats and their associated wild native flora and fauna in the rural and urban environments in general. This can also be broadly described as the general open environment.”
“9. ... we consider “release into the wild” to be the active letting go of an animal, from a condition of captivity, such that it has the freedom to go where it will. In essence, we consider that the deliberate introduction of an animal into an area considered to be “the wild” would be an act of release. 10. As outlined in previous DEFRA/ NE government guidance however, even a release into an enclosure may constitute a breach of section 14 in circumstances. The question of whether the offence applies or not in any case is one requiring careful consideration and judgement concerning the nature of the enclosure into which the release is made and whether it contains an area that could be considered to be “the wild”
“1. The principal purpose of section 14 is to prevent the occurrence of harmful impacts on natural habitats and their associated wild native flora and fauna arising from the introduction of non-native or schedule 9 listed species. 2. The fact that an area of natural habitat has been enclosed should not automatically preclude the application of section 14. 3. The release into an enclosure does not automatically disapply section 14's controls. The question of whether it applies or not in anyone case is one requiring careful consideration and judgement concerning the nature of the enclosure and whether it contains an area that could be considered to be “the wild”. 4. “the wild” in section 14 describes the nature of the environment or area into which the release or escape occurs and “the wild” is taken to mean the diverse range of natural habitats and their associated wild native flora and fauna in the rural and urban environments in general. This can also be broadly described as the general countryside/ open environment.”
“2. For section 14 to be engaged at all, there must be a “release or escape into the wild”
“6. There will be several means of achieving containment in order to create an “enclosure” and whilst it will be important that any enclosure for non-native species is secure as regards their containment, of equal relevance to determining whether a release into the enclosure would be a release “into the wild” will be consideration of whether the enclosed land comprises natural habitats and associated native flora and fauna living in a wild state that may be impacted in the manner that section 14 is meant to prevent. 7. Animals in secure enclosures comprising artificial environments that are isolated from the general countryside, and from which escape into the general countryside is highly unlikely, (for example, artificial animal enclosures in zoos), would not be considered to be “in the wild”.... 8. However, substantial enclosures in the general countryside are more likely to be of concern given the greater scope for adverse impacts on natural habitats and their associated fauna or flora. It would create rather perverse outcomes if significant areas of natural habitats containing wild native flora or fauna could be put at risk of being adversely affected by introduced species with regulation precluded merely because of the existence of perimeter fencing or some other boundary feature ultimately confining the introduced spaces. 9. In these circumstances, and again bearing in mind the legal obligations under the European directives, and the purpose of section 14; a considered judgement will therefore be required by Natural England as the licensing authority as to whether the enclosure encompasses an area that could be considered to be “wild”, and whether the size and nature of the enclosure creates scope for appreciable prejudice to natural habitats, flora and fauna. If it does, the application for a section 16 licence is like (sic) to then be required for any releases of non-native species into the enclosure.”
“Principal test: If an animal of a species not ordinarily resident in GB is to be introduced into an enclosure, two crucial questions arise, namely: (1) is the release into an area that constitutes “the wild” and (2), if so, is there potential scope for prejudice to natural habitats and wild native flora and fauna. An animal released into the rural or urban environments and subject to restrictions on its freedom, is considered to be “in the wild” if (a) or (b) below is satisfied: (a) it is living as if it was a wild creature in a suitable natural habitat. (b) it is capable of having an impact on natural habitats and wild native flora or fauna. … In determining whether an animal falls within either of the categories above, the following criteria should be considered: a) it is living as if it was a wild creature: 1. Freedom of movement: does it have sufficient range to pursue its natural life cycle and is it capable of survival without dependency on human intervention, (notwithstanding that human intervention or influence may be proffered). The additional factors below could provide additional assistance in determining the answer to this question. 2. Human control or influence: • is the animal clearly under the “ownership” of someone or is it abandoned/ free to fend for itself • if it is “owned”, is it living under conditions such that it can readily be brought under direct human control. For example, could a person relatively simply take possession of the animal or would seizing the animal require the use of techniques like those that would be necessary to seize a free living animal from the wild, for example, trapping, tranquillizing by dart • is veterinary care or other welfare attention administered - if such attention is necessary, the animal is less likely to be in a natural environment suitable for it's survival... 4. Nutrition: can the animal sustain itself within its current habitat or is supplementary feeding necessary rather than merely desirable or provided in any case (if supplementary feeding is not strictly necessary for the animal to have a reasonable chance of survival, it is more likely to be living in a wild state and to be in suitable natural habitat for its purposes). b) Is it capable of having an impact on natural habitats and wild native flora or fauna: 1. Nature and scale of enclosed area: does the enclosed include an area of natural habitats with associated native flora and fauna on which the animal could have an impact. 2. Wider interaction/ potential impacts: are any impacts that might arise from the presence of the animal adequately isolated from the general countryside or is it capable of impacting on or interacting with natural habitats and/ or wild native species dash for example, while the enclosure may contain the animal, or other wild animals capable of entering and leaving; Or bearing in mind the statutory defence (paragraph 5), is the risk of escape into the countryside adequately addressed. None of these criteria is likely to be determinative on its own in any particular case. A considered opinion will have to be formed, taking into account the sum of the assessments, as to whether section 14 applies to the individual case and if so, whether a licence with or without conditions should be granted or licence refused.”
“40 years conserving our shared natural heritage (2019)” at pgs. 19 and 23 and “Hunting” under the Birds Directive in the Foreword and at paras. 2.4.20 – 2.4.22. The latter publication explains that some of the most important wildlife sites in Europe have survived the pressures of development and destruction due to the interests of game management and that this activity brings “significant social, cultural, economic and environmental benefits”
“The objective is the preservation, maintenance and re-establishment of a sufficient diversity and area of habitat for wild birds in the United Kingdom, including by means of the upkeep, management and creation of such habitat, as appropriate, having regard to the requirements of Article 2 of the new Wild Birds Directive (measures to maintain the population of bird species).”
“In considering which measures may be appropriate for the purpose of securing or contributing to the objective in paragraph (3), appropriate account must be taken of economic and recreational requirements.”
“9. … (1) The duty imposed by article 6(3) of the Habitats Directive and regulation 63 of the Habitats Regulations rests with competent authorities, not with the courts. Whether a plan or project will adversely affect the integrity of a European protected site under regulation 63(5) is always a matter of judgment for the competent authority itself (see the judgment of the CJEU in Holohan v An Bord Pleanála (Case C-461/17 )[2019] PTSR 1054 , at para 44). That is an evaluative judgment, which the court is neither entitled nor equipped to make for itself (see the judgment of Lord Carnwath JSC in R (Champion) v North Norfolk District Council[2015] UKSC 52 ;[2015] 1 WLR 3710 , at para 41, and the judgment of Sales LJ, as he then was, in Smyth v Secretary of State for Communities and Local Government[2015] EWCA Civ 174 ;[2015] PTSR 1417 , at para 83). In a legal challenge to a competent authority’s decision, the role of the court is not to undertake its own assessment, but to review the performance by the authority of its duty under regulation 63. The court’s function is supervisory only. This has been emphasised often in the domestic cases (see, for example, the recent first instance judgment in Compton Parish Council v Guildford Borough Council [2020] JPL 661, at para 207). (2) In Coöperatie Mobilisation for the Environment UA, Vereniging Leefmilieu v College van Gedeputeerde Staten van Limburg (Case C-293/17 ) [2019] Env LR 27 (“Dutch Nitrogen”), the CJEU said that it is “for the national courts to carry out a thorough and in-depth examination of the scientific soundness of the ‘appropriate assessment’ …” (para 101 of the judgment), which “makes it possible to ensure that there is no reasonable scientific doubt as to the absence of adverse effects of each plan or project on the integrity of the site concerned, which it is for the national court to ascertain” (para 104). The force of these statements is that the court, for its part, must be wholly satisfied in the exercise of its supervisory jurisdiction that the competent authority’s performance of its obligations under article 6(3) was lawful. It must satisfy itself of the lawfulness of the authority’s consideration of the scientific soundness of the appropriate assessment. But there is nothing in the CJEU’s judgment to suggest that it intended to transform the respective roles of the competent authorities and the domestic courts by giving the court the job of undertaking an alternative appropriate assessment of its own. (3) When reviewing the performance by a competent authority of its duty under regulation 63, the court will apply ordinary public law principles, conscious of the nature of the subject-matter and the expertise of the competent authority itself. If the competent authority has properly understood its duty under regulation 63, the court will intervene only if there is some Wednesbury error in the performance of that duty (see the judgment of Sales LJ in Smyth, at para 80, and the judgment of this court in Plan B Earth v Secretary of State for Transport[2020] PTSR 1446 , at paras 68 and 75 to 79, which were not doubted by the Supreme Court in the same proceedings (sub nom R (Friends of the Earth Ltd) v Secretary of State for Transport[2021] PTSR 190 )). When exercising its supervisory function, the court will apply the normal Wednesbury standard, not a heightened standard such as “anxious scrutiny” (cf R v Ministry of Defence, Ex p Smith[1996] QB 517 , and R (Mahmood) v Secretary of State for the Home Department[2001] 1 WLR 840 ). It is well established that such a heightened standard will apply only where fundamental rights or constitutional principles are at stake (see the judgment of Lord Carnwath JSC in Kennedy v Charity Commission[2014] UKSC 20 ;[2015] AC 455 at para 245, and the first instance judgment in R (McMorn) v Natural England[2015] EWHC 3297 (Admin) ;[2016] PTSR 750 , at paras 204 and 205). Given the demanding requirement inherent in regulation 63(5)—for the competent authority to ascertain that the project “will not adversely affect the integrity of the European site”—the court’s examination of the authority’s performance of its duty will be suitably exacting within the bounds of its jurisdiction. But it should be remembered that the autonomous approach of the domestic courts in judging the lawfulness of such action has been explicitly approved by the CJEU (see the judgment of this court in Plan B Earth, at paras 74, 75 and 137, discussing the CJEU’s decision in Craeynest v Brussels Hoofdstedelijk Gewest (Case C-723/17 ) [2020] Env LR 4). (4) A competent authority is entitled, and can be expected, to give significant weight to the advice of an “expert national agency” with relevant expertise in the sphere of nature conservation, such as Natural England (see the judgment of Sales LJ in Smyth, at para 84, and the first instance judgment in R (Preston) v Cumbria County Council[2019] EWHC 1362 (Admin) ; [2020] Env LR 3, at para 69). The authority may lawfully disagree with, and depart from, such advice. But if it does, it must have cogent reasons for doing so (see the judgment of Baroness Hale of Richmond JSC in R (Morge) v Hampshire County Council[2011] PTSR 337 , at para 45, the judgment of Sales LJ in Smyth, at para 85, and the first instance judgment in R (Prideaux) v Buckinghamshire County Council [2013] PTSR D39; [2013] Env LR 32, at para 116). And the court for its part will give appropriate deference to the views of expert regulatory bodies (see, for example, the judgment of Beatson LJ in R (Mott) v Environment Agency[2016] 1 WLR 4338 , at paras 69 to 77). (5) When provided with expert evidence in a claim for judicial review, the court will not substitute its own opinion for that of the expert. As this court emphasised in R (BACI Bedfordshire) v Environment Agency [2020] Env LR 16, at para 87, “[unless] there is clear evidence revealing a failure of … expertise—for example, some conspicuous factual or scientific error —the court is entitled to conclude there was no such failure”
“By stating, “Subject to provisions of this Part [1]…”, Section 14 allows for those actions that would otherwise constitute offences to be permitted, and this is made possible through licensing provisions in Section 16.” … “Section 16(4)(c) disapplies offences under Section 14 ‘if done under and in accordance with the terms of a licence granted by the appropriate authority’. Unlike other sub-sections of Section 16, there are no stated licensable purpose (sic) in Section 16(4) and the precise ‘purpose’ of the GBGL that is subject to this assessment is unrestricted.” (p4). Whether that statement about purpose was correct will be considered below. NE proposed conditions on general licences and stated: “For the purposes of the licence releasing into ‘the wild’ includes: • Releases into enclosures or pens from which birds can exit or from which birds will be released at a later point in time 4, and • Releases into the general countryside, including rural and urban areas.”
“The definition encompasses pens that are kept closed for a period before birds are released (a common practice for redlegged Partridges)”
“Natural England’s advice is that this shadow assessment can ascertain that this project (the proposed GBGL) will not have an adverse effect on the integrity of SPAs and Ramsar site(s), either alone or in combination with other plans and projects, taking into account its limited duration and subject to the incorporation of the measures outlined above in section D3 as general restrictions and/or conditions to be attached to the project.” • Releases into enclosures or pens from which birds can exit or from which birds will be released at a later point in time 4, and • Releases into the general countryside, including rural and urban areas.”
“ii. Negative effects tend to be localised and studies indicate minimal or no effects beyond 500m (on a precautionary basis) from the point of release. Most studies tend to be within 300m of the point of release or within pens thus there is no direct evidence of the effects at or beyond this distance. However, Natural England have concluded that negative effects beyond 500m are likely to be minimal because studies also show that dispersal of birds tends to be less than 500m from the release sites and the negative effects in consideration are linked to the presence of birds. iii. There is strong evidence of associated benefits for biodiversity from general woodland management associated with shooting but a limited evidence base on the positive effects of general habitat management associated with gamebird management which may benefit native biodiversity.”
“To reduce risk of contact with ‘summer’ breeding bird features, the release of gamebird poults from pens could be delayed until after these migratory birds have largely dispersed (typically mid-Aug or early Sep). This temporal separation between breeding bird features and gamebird release would mitigate the disease transmission risk from gamebirds. This mitigation would not be appropriate for sites that also support nonbreeding bird features where these could interact with gamebirds or bridging species. Sites identified with only breeding bird features, such as little tern, whereby this mitigation may be appropriate are detailed in Appendix A and Appendix C. However, the necessary timing to achieve temporal separation is dependent on the ecology of the specific breeding bird features of each site. Some species can finish breeding activities earlier in the year, and therefore release timing could reflect this. However, we must apply the precautionary principle to suitably high regard and ensure that the risk is appropriately mitigated; and ornithologist advice on a site-by-site basis is required to inform decisions.”
“'Release' • DEFRA defines gamebirds as released when gamebirds can range freely in the landscape. If gamebirds are kept in an open top release pen they are considered released as soon as they are placed inside of the pen. If gamebirds are kept in a closed top release pen they are considered released as soon as the pop holes are first opened to allow them to range freely outside of the pen.”
“'The wild' is defined in government policy as “The diverse range of natural and semi-natural habitats and their associated wild native flora and fauna in the rural and urban environments in general. This can also be broadly described as the general open environment.”1 In broad terms, the release specimens need to be capable of interacting with native habitats and species.”
“(A1) For the purposes of this section “the general biodiversity objective” is the conservation and enhancement of biodiversity in England through the exercise of functions in relation to England. (1) A public authority which has any functions exercisable in relation to England must from time to time consider what action the authority can properly take, consistently with the proper exercise of its functions, to further the general biodiversity objective. (1A) After that consideration the authority must (unless it concludes there is no new action it can properly take)— (a) determine such policies and specific objectives as it considers appropriate for taking action to further the general biodiversity objective, and (b) take such action as it considers appropriate, in the light of those policies and objectives, to further that objective.”
“[Gamebirds] must not be released on [the Controlled Zone] before [date]. Gamebirds must not be kept on, or within 500m of, the SPA prior to this date. NE have adopted a policy of requiring a licence for releases to locations which are outside of a Buffer Zone where that location is within a pen/area which extends partially into the Buffer Zone”
“i. The definition of ‘release’ adopted in the licence appears to treat any movement of birds from rearing pens to release pens as a regulated release, even where the birds remain enclosed or under management. This extends far beyond the ordinary understanding of a release as birds being introduced into the wild. ii. The definition of 'licensable area’ on page 2 of the Supplementary Guidance Document produced by Natural England includes release pens that lie partially outside the buffer Zone. This extends the licensable area beyond that which is provided by the law. iii. A prohibition against the use of lead shot is imposed even though this is a licence to release gamebirds, not a licence to shoot. We are concerned this extends restrictions beyond the existing regulations for the use of lead shot. iv. The imposition of the licensing regime necessarily curtails shooting operations on our SPAs. In practical terms, uncertainty over licence conditions, the additional administrative burden, and late release dates mean planned shoot days may be reduced or cancelled altogether. A reduction in shoot activity directly affects the income on which our land management depends. Predator control, the sowing of cover crops and other conservation measures work are all funded by the proceeds of shooting. If shoot activity declines, so too does our ability to invest in these measures, even though they provide clear and ongoing benefit to the very species and habitats for which the SPA was designated. In this way the licensing regime undermines, rather than supports, the conservation objectives it is meant to serve”
“The proposed challenge concerns the approach taken by Natural England (“NE”) to the exercise of its powers to grant individual licences for the release of common Pheasants Phasianus colchicus and red-legged Partridge Alectoris rufa within 500 metres of and within Special Protection Areas (“SPAs”) (“the Controlled Area”). In particular, BASC proposes to challenge NE’s emerging practice of: (i) applying conditions which purport to exceed the scope of the licensing regime created by restricting activities which would not otherwise require a licence under sections 14 and 16 of theWildlife & Countryside Act 1981 ("the 1981 Act"), (ii) including notes on the licences which purport to extend the scope of theEnvironmental Protection (Restriction on Use of Lead Shot) (England) Regulations 1999 (“theLead Shot Regulations 1999 ”), (iii) requiring licences for release outside of the Controlled Area where that release is to pens which include land within the Controlled Area.”
“(6) In considering whether a plan or project will adversely affect the integrity of the site, the competent authority must have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which it proposes that the consent, permission or other authorisation should be given.”
“These dates were intended to coincide with approximately when the protected bird species would have left the SPA after breeding.”
“36 Having sought the assistance of counsel on the topic, we have also given consideration to whether Ms O’Neill’s reading of the statute is required by the canon of statutory construction usually labelled the principle against doubtful criminality or doubtful penalisation. This is generally stated to mean that, in the words of Lord Reid in Sweet v Parsley[1970] AC 132 , 149: “it is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.”
“38 There is no occasion in this case for a definitive analysis of the circumstances in which the principle of strict construction of penal statutes, which is alive and well even if it may often give way to other canons of construction, will or will not be applied.”
“that a person should not be penalised except under clear law. This principle forms part of the context against which legislation is enacted and, when interpreting legislation, a court should take it into account” and that “[i]n the context of legislation the principle that a person should not be penalised except under clear law gives rise to what is sometimes described as a presumption against doubtful penalisation. The rationale is that the legislature is presumed to intend that a person on whom a hardship is inflicted should be given a fair warning.”
“a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it.”
“no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it.”
“Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act [which] must be determined by construing the Act as a whole . . . if the Minister . . . so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court.”
“no statute confers an unfettered discretion on any minister. Such a discretion must be exercised so as to promote and not to defeat or frustrate the object of the legislation in question . . . The object is to ascertain the statutory purpose or object which the draftsman had in mind when conferring on ministers the powers set out in section 31.”
“The present appeal raises a point of statutory interpretation: what is the ambit of the power conferred on the minister by section 31(1) … ? No statutory power is of unlimited scope … Powers are conferred by Parliament for a purpose, and they may be lawfully exercised only in furtherance of that purpose … The purpose for which a power is conferred, and hence its ambit, may be stated expressly in the statute. Or it may be implicit. Then the purpose has to be inferred from the language used, read in its statutory context and having regard to any aid to interpretation which assists in the particular case. In either event … the exercise is one of statutory interpretation.”
“91 In Padfield[1968] AC997 , 1030, Lord Reid said that there is no such thing as an unfettered discretion in administrative law. Parliament always confers a discretionary power with the intention that it should be used to promote the policy and objects of the Act concerned; and the policy and objects must be determined by construing the Act as a whole. If a public authority uses its discretion to thwart or run counter to the policy and objects of the Act, then the decision will be unlawful. 92 That principle requires that a discretionary power should be exercised so as to further the objects and policy of the legislation which confers it, and not to impede or frustrate that purpose. It is not concerned with whether the exercise of a discretionary power is “likely” to further the statutory purpose. It suffices that a discretionary power has been exercised for that purpose and not for some extraneous purpose (for example to penalise a political opponent). There need not be bad faith: the purpose of the decision may be a benign one but, if it is extraneous to the statute which confers the power, on its correct interpretation, then it will be unlawful.”
“Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context”
“The specifications of precise limitations in the licences, as to seasons or as to where crops or livestock are located, for example, are likely to involve difficult decisions as to just how precisely such limitations should be worded, with the consequence that every situation where the statutory purposes arise might not be covered. By specifying that the action must be for the statutory purposes, amongst the other circumstances summarised above, such difficulties are diminished if not avoided. As shown in RSPCA v Cundey, the question of whether the action is for such a purpose is likely to involve evidential issues of the sort which the criminal courts are well experienced in dealing with.”
“30 The proper approach of the courts in Wales and England in reviewing whether the requirements of s.16 have been complied with and whether it is appropriate to grant a licence thereunder was considered by the Court of Appeal in R. (on the application of Mott) v Environment Agency[2016] EWCA Civ 564 . Beatson LJ, giving the lead judgment, observed at [69]; “The very helpful submissions from both parties showed that it was common ground that in principle the court should afford a decision-maker an enhanced margin of appreciation in cases, such as the present, involving scientific, technical and predictive assessments.”
“32 The parties differed somewhat on the application for present purposes of decisions of the CJEU which did not concern the Directive but other directives such as those relating to hunting and habitats. An example of the latter is Luonnonsuojeluyhdistys Tapioal Pohjois-Savo-Kainuury (C-674/17) [2020] 2 C.M.L.R. 1, where the court concluded that derogations in the contexts of habitats must be assessed in light of the precautionary principle, saying at [66]: “… if, after examining the best scientific data available, significant doubt remains as to whether or not a derogation will be detrimental to the maintenance or restoration of populations of an endangered species at a favourable conservation status, the Member State must refrain from granting or implementing that derogation.”” “Releases” “The very helpful submissions from both parties showed that it was common ground that in principle the court should afford a decision-maker an enhanced margin of appreciation in cases, such as the present, involving scientific, technical and predictive assessments.” “… if, after examining the best scientific data available, significant doubt remains as to whether or not a derogation will be detrimental to the maintenance or restoration of populations of an endangered species at a favourable conservation status, the Member State must refrain from granting or implementing that derogation.””
“(a) it is living as if it was a wild creature in a suitable natural habitat. Or, (b) it is capable of having an impact on natural habitats and wild native flora or fauna.”
“that the imposition of the Disputed Conditions is based on an unlawful interpretation of S.14”
“C recognises that this court is ill placed to adjudicate on disputes involving scientific, technical and predictive assessments and as such does not seek to challenge by this claim the rationality of the conclusions reached by NE in the sHRA as to the risks posed by keeping and releasing of gamebirds, or the adequacy of mitigation and other regimes such as theAnimal Health Act 1981 and Avian Influenza Prevention rules. However, the court should be aware that C does dispute a number of the scientific and technical judgements reached, which C considers have had the effect of significantly extending the range of restrictions necessary to address the risks posed by HPAI.”