The Scottish Government has issued a consultation paper to gauge opinion on a series of proposed reforms to existing wildlife and natural environment legislation. The aim behind the consultation is to work towards the publication of a Wildlife and Natural Environment Bill.

The Current law

One proposed change is the removal of an anomaly that exists between the licensing of activities which can be issued for badgers and other European Protected Species such as otters, when compared with the remainder of UK protected species such red squirrels or water voles listed in terms of Schedule 5 of the Wildlife and Countryside Act 1981.

Under the 1981 Act, it is an offence to intentionally kill, injure, possess or trade any wild animal listed in Schedule 5. It is also an offence to interfere with places used for shelter or protection, or intentionally to disturb animals occupying such places. It is acknowledged that certain circumstances exist where it is appropriate for specific activities to be undertaken which would otherwise be prohibited under the terms of the 1981 Act. In such circumstances, the 1981 Act allows for a licence to be issued to permit such activities, which include anything done for scientific, research or educational purposes; for purposes of preserving public health or public or air safety; preventing the spread of disease; or for conserving flora and fauna. However, at present, a licence may not be issued allowing development that may impact upon the protected species, and this has consistently acted as a barrier to development.

In contrast, the Conservation (Natural Habitats &c.) Regulations 1994 provide for the licensing of activities that may impact upon listed protected species where the activities are for "imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment." The result of this provision is to allow an exemption from the ban on activities harming listed protected species, of a development that impacts upon a species. This may occur so long as this impact is proportionate.

Certainly, the discrepancy between the Act and the 1994 Regulations puts developers in an unusual position. On the one hand, a licence can be obtained allowing for a development which will impact upon "European Protected Species" but not to allow a development with an impact upon species protected under the 1981 Act.

The Wildlife and Natural Environment Bill Consultation

The consultation paper questions whether this inconsistency between the two pieces of legislation should be removed. It seeks views as to whether the 1981 Act should be modified to allow licences to be granted for development activities that impact upon Schedule 5 species. It is proposed that the wording of the exemption would follow the wording of S44(2)(e) of the 1994 Regulations. This would allow consistency to be achieved in the activities for which licences can be granted.

The consultation remains open until 4 September 2009. Now is the time for those with an interest to lodge a response to the Wildlife and Natural Environment Bill team of the Scottish Government.

Access the Wildlife and Conservation Consultation on the Scottish Government's website.