Royal Society for the Protection of Birds, R (On the Application Of) v Natural England

When a wildlife licence is granted under a specific purpose in section 16(1) of the Wildlife and Countryside Act 1981, the requirement to consider whether there is another satisfactory solution relates to that purpose. A scientific trial may therefore be assessed by reference to whether it can generate the required evidence and whether another satisfactory means of obtaining that evidence exists. The grant of a time-limited research licence does not determine whether a later conservation scheme should be authorised. A properly conducted habitats assessment may rely on stringent conditions, mitigation and an exit strategy. The court reviews the licensing decision for legality and rationality, while proportionality remains required where EU law applies.

Two linked judicial review claims challenged Natural England’s decision on 16 January 2018 to grant a licence under section 16(1)(a) of the Wildlife and Countryside Act 1981 for a scientific trial of brood management of hen harriers.

The Royal Society for the Protection of Birds and Dr Mark Avery argued that the licence pursued conservation rather than research, failed to consider satisfactory alternatives, had insufficiently defined aims and conditions, exceeded the statutory licence period, threatened designated sites, and was disproportionate. The claims also challenged the decision to conduct the trial in England rather than Scotland and Natural England’s assessment under regulation 63 of the Conservation of Habitats and Species Regulations 2017.

1. Claims dismissed. Natural England had lawfully granted the licence under section 16(1)(a) of the Wildlife and Countryside Act 1981 for scientific and research purposes.
2. Under section 16(1A)(a), the alternative-solutions inquiry concerns the particular purpose for which the licence is granted. Natural England therefore had to consider whether the trial could generate the required evidence and whether another satisfactory means could do so. It was not required at this stage to assess alternatives to a future conservation scheme under section 16(1)(c).
3. The trial was materially distinct from any later general conservation licence. Its grant did not decide that brood management should form part of the eventual conservation strategy. A later section 16(1)(c) decision would remain independent and challengeable.
4. Natural England rationally concluded that the trial had sufficiently defined aims, methods, monitoring and evaluation. Conditions requiring approval of the research plan and scientific advisory arrangements, together with monitoring, modification and revocation powers, adequately secured the trial’s purpose.
5. The two-year limit in section 16(5A)(c) applied to the duration of each licence, not to the duration of the research project. The legislation did not prevent successive licences.
6. The decision to conduct the trial in England was rational. A Scottish trial would not test the effect of brood management on English human behaviour or on the English hen harrier population.
7. The trial was not inconsistent with the purpose of the relevant special protection areas. Natural England had assessed risks including displacement, survival and site loyalty, and imposed conditions requiring birds taken from an SPA to be released within the same SPA.
8. The habitats assessment under regulation 63 was lawful. It considered potential adverse effects, mitigation, conservation objectives, the time-limited nature of the trial and an exit strategy. The cases concerning permanent habitat alteration and displacement were distinguishable.
9. Proportionality required consideration of suitability and necessity. Natural England was entitled to conclude that the trial was suitable to generate knowledge and that the objective could not be achieved by a less onerous method. Its choice of intervention threshold and licence conditions was rational and proportionate.