Wild Justice v Natural Resources Wales

General licences authorising the killing or taking of wild birds need not specify every possible temporal or geographical circumstance of use. It is sufficient that their purposes, species, authorised actions, methods, authorised persons, restrictions and duration define the statutory boundaries, provided use is objectively connected with the stated purpose.

The requirement that there be no other satisfactory solution concerns the authority’s decision to grant a general licence. It does not require a case-by-case assessment before every use. Environmental regulators receive an enhanced margin of appreciation in scientific, technical and predictive assessments. Derogations require positive evidence and rational evaluation, but neither full scientific certainty nor a fixed evidential threshold is required.

Wild Justice sought judicial review of three general licences issued by Natural Resources Wales for 2020. The licences authorised specified persons to kill or take certain wild birds for purposes including preventing serious damage to livestock, foodstuffs, crops and fruit, protecting public health, and conserving other wild birds.

The challenge alleged that the licences failed to specify sufficiently the circumstances of use, that they permitted lethal control without a case-by-case assessment of alternative solutions, and that Natural Resources Wales lacked positive evidence justifying the derogations. The central issues concerned the requirements of article 9 of the Directive and section 16 of the Wildlife and Countryside Act 1981.

1. Ground 1 dismissed. Section 16(5A)(a) of the Wildlife and Countryside Act 1981 did not require the licences to prescribe every precise seasonal or geographical limitation. The licences specified the statutory purposes, species, authorised actions, methods, authorised persons, prohibited locations and duration. Those matters sufficiently defined the circumstances in which action could be taken. Whether an act was genuinely undertaken for a specified statutory purpose could be determined evidentially by the criminal courts.
2. Ground 2 dismissed. The requirement in section 16(1A)(a) that the authority be satisfied that there was no other satisfactory solution applied to the grant of the general licences. It did not require Natural Resources Wales to decide before every individual use whether a non-lethal alternative was satisfactory. The authority was entitled to make a broad judgment, including social, economic and practical considerations, as to whether general licences permitting lethal control were appropriate. A condition requiring reasonable efforts to use other lawful methods might be helpful in future, but was not legally required.
3. Ground 3 dismissed. The derogations had to be properly justified by positive evidence; absence of evidence against them was insufficient. However, there was no requirement for full scientific certainty or a prescribed evidential threshold. Natural Resources Wales had an enhanced margin of appreciation in assessing complex scientific and predictive evidence. Its conclusion that the evidence concerning risk and alternative solutions was sufficient, although sometimes weak and requiring further research, was not irrational.
4. The claim therefore failed. A reference to the CJEU under article 267 of the Treaty on the Functioning of the European Union was refused. Following the European Union (Withdrawal Agreement) Act 2020, such a reference was unavailable after 31 December 2020; in any event, the questions were unsuitable for reference and this court was not a court of last resort.