Natural England Refusal Of Licence To Control Buzzards Overturned In Landmark Ruling For Game-Keeping Industry
Monday 23rd November 2015
A decision by Natural England, the government’s wildlife licencing authority, has been overturned in a landmark court case with significant implications for the game-keeping industry.
Mr Justice Ouseley, sitting in the Administrative Court at the Royal Courts of Justice, has quashed the refusal of Natural England (NE) last year to grant a licence for the control of common buzzards, in a judgment following a three-day judicial review hearing in June.
The case was brought, with the support of the National Gamekeepers Organisation (NGO), by Ricky McMorn, a self-employed gamekeeper from Northumberland, because buzzards had been increasingly killing young pheasants before they could be released for shoots since 2010.
When he made the first of his five applications to NE for a licence – all of which were rejected – in 2011, Mr McMorn wanted it to cover the six shoots he operated, some of which he had run for over 20 years. However, the delay in granting the licence meant the shoots became unviable and had this decision gone against him, he could not have continued as a game-keeper.
Yorkshire law firm, Gordons, represented the NGO and Mr McMorn.
The 1981 Wildlife and Countryside Act makes it illegal to kill wild birds without a licence. But licences can be granted in the interests of public or air safety, for research and, as in this case, to prevent serious damage to crops or livestock, including, specifically, game birds kept for shooting. Where certain tests are met, these licences can’t be unreasonably withheld.
NE had already accepted that the buzzards were preying on the pheasants and causing serious damage, that they were the main cause of the pheasant deaths and that Mr McMorn had done all he reasonably could to scare off the birds of prey. NE had also acknowledged that removing a small number of buzzards from the site would not compromise the species’ conservation status, yet still repeatedly refused a licence.
In the judicial review, we specifically challenged NE’s latest 2014 rejection on a series of grounds, all of which Mr Justice Ouseley has upheld. He has agreed that NE unlawfully took public opinion into account and acted unreasonably in declining the licence application. He also ruled that NE unfairly failed to consider its own technical assessor’s recommendation that eight buzzards should be captured alive through cage trapping and moved to captivity.
In addition, the judge considered that NE unlawfully operated an undisclosed policy about how buzzard applications were to be treated. This required more and better evidence than was demanded for other breeds, for individual birds to be identified and for proof to be provided that removing them would end the damage to the pheasants.”
The folly of this policy was illustrated by the fact that NE allowed thousands of cormorants to be shot each year, despite there being fewer of them than buzzards. There are over 300,000 buzzards in the UK, meaning it is a green listed species, regarded as occurring regularly and not warranting inclusion in the red or amber lists of threatened breeds.
Buzzards therefore officially enjoyed no greater legal protection than cormorants and other species such as carrion crows, magpies or wild pigeons.
Welcoming today’s decision, Gordons said: “We’re delighted for Mr McMorn, whose livelihood was at risk in this David versus Goliath situation and whose business suffered significantly because of NE’s decisions. This is also a very important judgment for landowners who want to apply to NE for means to protect livestock from predators such as buzzards.
“The case should reassure farmers, game-keepers, and others working to create an environment balancing human and ecological interests that NE will treat applications for wildlife licences, including those to kill buzzards, more consistently in the future.”
Gordons were approached by the NGO about this case after they advised the owner of Walshaw Moor, in the South Pennines, on a case concerning moorland management techniques relating to grouse rearing. This also involved a judicial review of an NE decision, plus a five-week public enquiry.
The firm was also instructed to represent the Plantagenet Alliance, a group of King Richard III’s collateral descendants, in last year’s high-profile judicial review of the Ministry of Justice’s processes which led to the monarch’s remains being re-buried in Leicester.