Outer House judge reduces licences for lethal control of Scottish beavers after petition by environmental charity

A Scottish environmental charity has successfully challenged the manner in which licences for lethal control of beavers in Scotland were issued by way of petition for judicial review in the Outer House of the Court of Session.

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

The petition was heard by Lady Carmichael. O’Neill QC appeared for the petitioner and Crawford QC for the first respondent. J Findlay QC appeared for both NFU and SLE Ltd.

Policy of first resort

Following their reintroduction into Scotland in 2009, beavers became a European protected species with effect from 1 May 2019. As a result, the killing of beavers became prohibited except by obtaining a licence to do so, a process regulated by the Conservation (Natural Habitats, etc) Regulations 1994, as amended.

The petitioner’s position was that the first respondent had granted a licence to any and all applicants who reported beaver activity near land classified as “prime agricultural land”, without due and proper consideration of the necessity and proportionality of issuing each individual licence. It sought nine declarators, reflecting complaints that the first respondent had, among other things, failed to interpret the 1994 Regulations correctly and failed to give reasons for granting licences.

Counsel for the petitioner submitted that the first respondent was required to consider whether there was a satisfactory alternative to lethal control in relation to every licence decision it made, as per the EU Habitats Directive on which the Regulations were based. Instead, it had made a “policy of first resort” of granting lethal control licences without considering alternatives without providing any evidence for why this position was adopted.

The first respondent submitted that it had a discretion as to what licences to issue and had exercised it in a manner informed by its experience and expertise. Further, there was no general duty in public law for them to give reasons for their decisions, and it was entitled to conclude that serious damage would have occurred in relation to prime agricultural land without the granting of lethal control licences.

No automatic assumption

In her decision, Lady Carmichael said of the first respondent’s general policy: “The terms of the [internal guidelines] do not reflect the approach that the first respondent ought to have been taking as a matter of law. There is no room for an ‘automatic assumption’ that there will be no satisfactory alternative to a derogation, or that all the tests for a lawful derogation will be met in respect of PAL.”

Examining whether it was obliged to give reasons for granting licences, she noted: “The first respondent admits that it does not issue ‘full reasoning’ for its decision to grant each licence. It says that it is under no obligation to do so. In approaching matters on the basis that it has no duty to give reasons for ranting a licence, the first respondent has erred in law.”

She explained further: “An authority derogating from the prohibitions specified in Article 12 of the Habitats Directive by reference to Article 16 must give reasons in the derogation decision. Those reasons must include an assessment of the conservation status of the species in question, and must explain why there is no satisfactory alternative measure which is not a derogation. Although the requirement to give reasons is not explicit in the words 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 lawfulness of a derogation decision under that article.”

Turning to the submissions of the third and fourth respondents, Lady Carmichael said: “The third and fourth respondents suggested that the petitioner was contending for a duty to provide interest groups and NGOs with reasons for licensing decisions which did not affect them. They were concerned that there was a suggestion that the licensing process required the participation of the public, including the petitioner. Those were not the petitioner’s contentions, and they are not what the jurisprudence requires.”

She concluded: “There is no question of requiring to provide reasons specifically to organisations like the petitioner, or for public participation in the licensing process. What is required is a statement of reasons in relation to each licensing decision. There is no requirement to give reasons as to why one form of derogation has been chosen over another.”

While the petitioner’s other complaints were held not to be well-founded, Lady Carmichael determined that on this basis the petition was to be granted, with the appropriate remedy being reduction of those licences granted by the first respondent which had not already expired.

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