British Association for Shooting and Conservation, R (on the application of) v Natural England

Under the Wildlife and Countryside Act 1981, the offence of releasing listed gamebirds into the wild does not encompass keeping them as livestock in controlled pens before genuine release. A licence condition may regulate matters rationally related to release and protection of relevant wild birds, but the power to impose any specified conditions is not unlimited. The Habitats Regulations cannot enlarge that domestic criminal or licensing scheme. A no-keeping condition imposed on that mistaken basis is ultra vires and unlawful. The court also held that the conditions were not uncertain and declined to determine a withdrawn buffer-zone guidance challenge that was hypothetical.

The claimant sought judicial review of Natural England’s 2025 individual licences for releasing pheasants and partridges in Special Protection Areas and their 500-metre buffer zones. The licences delayed release and prohibited keeping gamebirds in the controlled zones before specified dates. The claimant argued that keeping birds in pens was not the activity licensed under sections 14 and 16 of the Wildlife and Countryside Act 1981. It also challenged guidance concerning pens straddling buffer zones. The lead-shot issue was conceded.

The central questions were whether the disputed conditions were within the statutory licensing power, whether Natural England had misinterpreted section 14, whether the conditions were uncertain or irrational, and whether the buffer-zone challenge was too hypothetical to determine.

Disposition. Grounds 1 and 1A succeeded. The conditions prohibiting the keeping of gamebirds in the controlled zones before specified release dates were ultra vires and unlawful. The conditions were not too uncertain. Ground 2 was not determined because the relevant guidance had been withdrawn and the challenge was hypothetical.

1. Meaning of release. Section 14(1) contains two elements: release or escape, and release or escape into the wild. Applying the contextual approach in R (O) v Secretary of State for the Home Department [2023] AC 255 and R (PACCAR Inc) v Competition Appeal Tribunal [2023] 1 WLR 2594, the court held that release means relinquishing sufficient control or captivity to make the bird sufficiently free.
2. Application to pens. Partridges in closed pens around crops were not released. Pheasants in open-topped woodland pens, with fencing, food, water, monitoring and predator control, were also generally not released. The court accepted that such pens might constitute the wild under the relevant interaction criterion, but that did not remove the threshold requirement of a release.
3. Scope of the licensing power. Keeping gamebirds as livestock before release was distinct from releasing them and was not criminalised by section 14. Sections 16(4) and 16(5) created offence-specific licensing provisions. The words permitting any specified conditions did not authorise unlimited regulation of pre-release livestock management. Lawful conditions had to protect relevant wild birds under a rational regulation 63 assessment and be rationally related to release into the wild.
4. Habitats Regulations. Regulation 63(6) required regard to the manner of the project and proposed conditions; it did not itself confer a power to impose conditions. The environmental duties in the Conservation of Habitats and Species Regulations 2017 could not enlarge the criminality in section 14 or the licensing power in section 16. Relief was not withheld under section 31(2A) of the Senior Courts Act 1981.
5. Scientific and other issues. The court made no finding on the rationality of the scientific assessment because that challenge had not been pleaded. If the wider power had existed, ordinary Wednesbury review, the precautionary principle and the no-reasonable-doubt standard would have applied. The court did not determine whether other statutory powers might support similar conditions because that issue had not been fully argued.

not stated in the judgment.