A recent court decision will be of interest to businesses that come into contact with protected animals.

The decision relates to a challenge brought by the environmental charity, Trees for Life, to Scotland's implementation of a licensing system for the control of beavers.

Background

Until 2009, there were no beavers in Scotland, the species having become nationally extinct. In 2009, there was a planned release of beavers. The population of beavers has since grown. The Scottish Government designated beavers as having "European protected species" ("EPS") status in 2019.

As a result, it became illegal to deliberately capture, kill or disturb beavers in Scotland, or to damage or destroy their breeding sites or resting places, other than when such activities had been licensed. The same approach operates in relation to other protected species such as hen harriers.

NatureScot (the public body formerly known as Scottish Natural Heritage) is the body responsible for licensing activities in relation to beavers, including licences for lethal control of the beaver population.

The challenge

In the court case, Trees for Life challenged NatureScot's administration of the licensing regime for the control of beavers, arguing that it was unlawful because NatureScot:

  • had failed to apply the law governing grant of licences correctly;
  • had taken into account irrelevant considerations when deciding whether to grant licences for the control of beavers;
  • had failed to give reasons for granting licences in relation to the control of beavers;
  • had a blanket policy of granting licences for lethal control of beavers where applications related to Prime Agricultural Land, and failed to consider the individual circumstances of each application; and
  • should have reviewed and revoked the licences that it had granted authorising lethal control.

NatureScot opposed the arguments made by Trees for Life. NFU Scotland and Scottish Land and Estates intervened in the proceedings in support of the arguments made by NatureScot and to represent the interests of those who had been granted licences in relation to the control of beavers.

The decision

The Court rejected all but one of the arguments made by Trees for Life. The one ground of success was that the Court agreed that NatureScot was, in the particular circumstances of the case, obliged to provide reasons whenever it granted a licence for the control of beavers.

Implications

The immediate implication of the Court's decision is that all licences previously granted by NatureScot for control of the beaver population no longer have legal effect.

Individuals and organisations holding licences to control the beaver population require to obtain fresh licences.

NatureScot has indicated it is considering the Court's judgment, so clarity as to the issuing of new valid licences can be expected in due course

That aside, the Court's decision vindicates the existing Scottish licensing regime. Suggestions that NatureScot had engaged in "generalised unlawful practices" were not accepted by the Court.

Contributors

Ramsay Hall

Legal Director

Tony Convery

Associate