Outer House judge cuts Scottish beaver lethal control licenses after petition from environmental charity

By Mitchell SkillingPosted 25 October 2021

A Scottish environmental charity has successfully challenged the way in which licenses for lethal beaver control in Scotland were issued through a petition for judicial review at the Outer House of the Court of Session.

Trees For Life requested nine filers as well as the reduction of 49 licenses issued by the first defendant, NatureScot, since May 2019. NFU Scotland and Scottish Land Estates Ltd, who represented the interests of many of the people to whom these licenses were issued, have also appeared. as respondents.

The petition was heard by Lady Carmichael. O’Neill QC appeared for the Applicant and Crawford QC for the First Respondent. J Findlay QC appeared for NFU and SLE Ltd.

First resort policy

Following their reintroduction to Scotland in 2009, beavers became a European protected species effective May 1, 2019. As a result, the killing of beavers has become prohibited, except by obtaining a license to do so, a regulated process. speak Conservation Regulations 1994 (natural habitats, etc.), as amended.

The applicant’s position was that the first respondent had granted a permit to all applicants who reported beaver activity in the vicinity of lands classified as “prime agricultural land”, without due regard to the necessity and proportionality of the issuance of each individual permit. She was looking for nine registrants, reflecting complaints that the first respondent had, among other things, failed to correctly interpret the 1994 Regulations and failed to provide reasons for the granting of licenses.

Counsel for the petitioner argued that the first defendant was required to consider whether there was a satisfactory alternative to lethal review for every licensing decision he made, in accordance with the European Habitats Directive on which the regulation was. based. Instead, he had established a “policy of first resort” of granting lethal control licenses without considering alternatives without providing any evidence as to why this position was taken.

The first respondent argued that he had discretion as to which licenses to issue and that he exercised it in a manner informed by his experience and expertise. In addition, there was no general public law obligation for them to give reasons for their decisions, and he was entitled to conclude that serious damage would have occurred in relation to prime agricultural land without the granting of licenses. lethal control.

No automatic assumption

In her decision, Lady Carmichael said of the general policy of the first respondent: “The terms of the [internal guidelines] do not reflect the approach that the first respondent should have taken in law. There is no room for an “automatic assumption” that there will be no satisfactory alternative to a waiver, or that all tests for a legal waiver will be satisfied with respect to PAL. “

Considering whether she was required to give reasons for the licensing, she noted: “The first respondent admits that he does not provide a ‘full motivation’ for his decision to grant each license. He says he has no obligation to do so. By approaching the issues on the basis that it does not have an obligation to justify the grant of a license, the first respondent erred in law. “

She explained further: “An authority derogating from the prohibitions provided for in Article 12 of the Habitats Directive by reference to Article 16 must justify the derogation decision. These reasons should include an assessment of the conservation status of the species in question and should explain why there is no satisfactory alternative measure that is not a derogation. Although the obligation to state reasons is not explicit in the terms of Article 16 (1), it is clear from the language used by the court that clear and sufficient reasons are a necessary condition for the legality of a decision to give reasons. exemption under this article.

Regarding the comments of the third and fourth respondents, Lady Carmichael said: “The third and fourth respondents suggested that the petitioner supports the obligation to provide interest groups and NGOs with the reasons for the authorization decisions which did not affect them. They were concerned that there had been a suggestion that the licensing process required the participation of the public, including the applicant. These were not the applicant’s assertions and this is not what the case law requires.

She concluded: “There is no question of requiring reasons specifically to be provided to organizations like the petitioner, or of public participation in the authorization process. What is required is a statement of the reasons for each authorization decision. It is not necessary to justify the choice of one form of exemption rather than another.

While the Applicant’s other complaints were found to be unfounded, Lady Carmichael determined that on this basis the Application should be granted, the appropriate remedy being the reduction of licenses granted by the First Respondent which had not already expired.

© Scottish Legal News Ltd 2021