An application for judicial review of a decision by Natural England was dismissed in March.
The Royal Society for the Protection of Birds (RSPB) and scientist and nature conservation campaigner Dr Avery, applied for judicial review against the decision to grant licence to conduct a trial into the brood management of hen harriers pursuant to the Wildlife and Countryside Act 1981.
Hen harriers are extremely rare, have the highest level of statutory protection, and are listed in the Wild Birds Directive 2009/147/EC. The Directive requires Member States to designate special protection areas (SPAs) for the conservation of hen harriers, with two in England. Adult hen harriers feed grouse chicks to their young during breeding season, which harms the grouse-shooting industry. Despite their protected status, hen harriers were being illegally killed and their nests destroyed.
Natural England proposed a brood management scheme which would seek to manage the conflict by removing hen harrier eggs and chicks from their parents in their nests, rearing them in captivity, and when they were fledged releasing them away from grouse moors. They wanted to hold a trial of the scheme to investigate the effect of brood management on the perceptions and behaviour of the moorland community, and to investigate whether it could rear hen harriers in captivity and then release them to become successful breeding adults in the English uplands.
The Claimants case was that the scheme was unlawful because of the unnecessary disturbance and harm it would cause to hen harriers in their habitat, and the existence of other less invasive ways to conserve and protect the species.
RSPB and Avery also claimed that Natural England had misapplied the Wildlife and Countryside Act 1981 by treating the purpose of the licence solely as research and not including the conservation of hen harriers, despite conservation being the ultimate purpose. RSPB submitted that Natural England had erred in deciding to run the trial in England, risking an already very small hen harrier population. Avery submitted that the trial was disproportionate, given the sparsity of the hen harrier population and its doubtful benefits compared to the risks posed.
The Judge concluded that Natural England's interpretation of the Wildlife and Countryside Act 1981 was correct and that there was no evidence that they were trying to avoid the overall statutory purpose of conservation of an endangered species. Natural England had identified and assessed the aims and methods of the research, together with monitoring and evaluation, prior to the grant of the licence, and lawfully concluded that it was justified. The scheme of care for the hen harriers was adequately secured and it was clear that Natural England's purpose in licensing the scheme was to further the conservation of hen harriers through research, not to protect grouse chicks or the grouse-shooting industry. Therefore the trial was not inconsistent with the purpose of SPAs and was proportionate and rational.
The Claimants application was dismissed.
