Guidance for applicants - on licence applications for the control of predatory birds to conserve wild birds

Transcription

1 Guidance for applicants - on licence applications for the control of predatory birds to conserve wild birds Contents Foreword Draft of letter to be sent to enquirers and potential applicants Annex 1 The Law and licensing in relation to wild birds: background Annex 2 Application forms Annex 3 Steps taken by licence applicant and SNH Annex 4 Guidance on evidence required in relation to applications for licences to control predatory birds for the purpose of the conservation of wild birds - with examples Annex 5 Useful information, definitions and references Map 1 Species accounts Scotland s 21 Natural Heritage Zones Foreword Scottish Natural Heritage and Scottish Government staff prepared this guidance in close consultation with the British Association for Shooting and Conservation (BASC), the Game and Wildlife Conservation Trust (GWCT), the NFU Scotland (NFUS), the Royal Society for the Protection of Birds (RSPB), the Scottish Gamekeepers Association (SGA), the Scottish Rural Property and Business Association (SRPBA), the Scottish Raptor Study Groups (SRSG) and the Scottish Wildlife Trust (SWT). Through the following guidance, SNH is endeavouring to make transparent the process by which applications for licences are assessed and to better describe the evidence it needs to justify the issue of a licence. This guidance does not and cannot change the processes, conditions or evidence required by law. Please note that it concerns licensing by SNH for the purpose of conserving populations of wild birds. Licences can also be sought from the Scottish Government for the purpose of preventing serious damage to livestock, agriculture and fisheries. You can obtain further information on licensing and wild birds from SNH s Species Licensing team (licensing@snh.gov.uk). 29 April 2009

2 DRAFT OF LETTER TO BE SENT TO ENQUIRERS & POTENTIAL APPLICANTS Dear [ ] Guidance on applications for a licence to control wild predators to protect wild birds or mammals Thank you for your letter dated [date] I hope the guidance contained below is helpful to you in deciding whether or not to submit a licence application. All wild birds and many wild mammals are protected by law, and some are given stronger protection. Under normal circumstances killing a protected species would constitute an offence. However, licences can be issued under the Wildlife and Countryside Act 1981, to control protected species for specific purposes. Annex 1 to this letter sets out these purposes Annex 2 gives details of application forms. Licences can be sought for the purpose of conserving wild birds. In order for a licence to be issued the licensing authority must satisfy itself that (a) a licence is necessary for the stated purpose (b) there is no satisfactory alternative, and (c) evidence supporting the application would stand up to scientific scrutiny. Therefore, in order to issue such a licence, SNH and the Scottish Government would need to be satisfied that a cause and effect link exists between, for instance, predation and significant declines in the population or distribution of other species. Annex 3 sets out the steps taken by the licence applicant, SNH and the Scottish Government in determining a licence application. Specifically, evidence would be needed which shows a decline in wild bird numbers, and a link between that and the reason for which a licence is sought. Annex 4 sets out generally the sorts of evidence SNH would consider in determining whether or not to issue a licence for the killing of or other control measures involving protected species. Annex 5 gives information relating to the application process. This guidance has been prepared by SNH and Scottish Government staff in close consultation with a range of countryside management and conservation organisations. Further information on licensing and wild birds can be obtained from SNH Species Licensing team (licensing@snh.gov.uk). Yours sincerely Licensing Officer 2

3 3 ANNEX 1 THE LAW AND LICENSING IN RELATION TO WILD BIRDS: BACKGROUND AND APPLICATION FORMS All wild birds are given protection under the Wildlife & Countryside Act 1981 (as amended) [the 1981 Act]. A wild bird is any bird of a species which is ordinarily resident in or is a visitor to any member State or any European territory of any member State in a wild state but does not include poultry or, in relation to certain methods of killing or taking and to licensing, game birds. Specially protected birds are listed on Schedule 1, A1 and 1A of the 1981 Act. Annex 5 gives definitions of key terms from the 1981 Act and SNH s understanding of the status of game birds in rearing or release pens and in the wild. Offences in relation to wild birds It is an offence to intentionally or recklessly or to kill, injure or take a wild bird take, damage destroy or interfere with a nest of any wild bird whilst it is in use or being built (or at any time for a nest habitually used by any bird listed in Schedule A1) obstruct or prevent any wild bird from using its nest take or destroy an egg of any wild bird disturb any wild bird listed on Schedule 1 whilst it is building a nest or is in, on, or near a nest containing eggs or young, or whilst it is lekking disturb the dependent young of any wild bird listed on Schedule 1 harass any wild bird listed on Schedule 1A possess or control a live or dead wild bird or an egg of a wild bird or any such derivatives knowingly cause or permit any of the above acts to be carried out. There are additional offences in relation to the use of prohibited methods of killing or taking wild birds; the sale of live and dead wild birds; and the registration and keeping of captive wild birds. Licences for the purpose of conserving wild birds Licences can be issued under Section 16(1) of the 1981 Act to permit, for specific purposes, certain actions that would otherwise be against the law in respect to wild birds. The licensing authority is Scottish Natural Heritage. The 1981 Act states that the licensing authority shall not issue such a licence unless it is satisfied that there is no other satisfactory solution ; and except on a selective basis and in respect of a small number of birds.

4 ANNEX 2 Applying for a licence for the conservation of wild birds which are allegedly being predated You can download a SNH licence application form and guidance from the following link: Alternatively, you can contact SNH s species licensing team: Species Licensing Scottish Natural Heritage Great Glen House, Leachkin Road Inverness IV3 8NW. Tel: licensing@snh.gov.uk Applying for a licence to prevent serious damage (to livestock, agriculture, etc) Applications to kill or take wild birds as an aid to preventing serious damage to agriculture, fisheries or livestock (see Annex 5 for relevant guidance in relation to game birds as livestock) will be considered by the appropriate local area office of the Scottish Government. For contact details of your nearest office see your local telephone directory or the Scottish Government s website at the following link: Alternatively, you can contact the Scottish Government licensing team at Species Licensing Team, Scottish Government Rural Directorate Species Licensing Team 1-A North, Victoria Quay Edinburgh EH6 6QQ. Tel: Fax: specieslicensing@scotland.gsi.gov.uk Applying for a licence for any other purpose Please contact either of the SNH or Scottish Government licensing teams for advice. 4

5 ANNEX 3 Outline of steps taken by the licence applicant and SNH in determining a licence application for the conservation of wild birds Applicant Obtain appropriate licence application form and guidance documents from SNH (See Annex 2 for contact details) Complete application form (using guidance in Annex 4 and 5). If in doubt, ask for advice! Indicate if the application is URGENT Submit application to SNH Licensing team SNH as the Licensing Authority Sometimes further information may be needed to properly assess the application. In such cases the licensing authority will seek this information from the applicant Receive application and make appropriate preliminary checks e.g. is sufficient information provided? Competency check on background information? Previous applications? Assessment of licence application, including; Is a licence necessary for the stated purpose? Are there satisfactory alternatives? What are the impacts of the proposal on the predatory bird? Licence issued Permit specified actions by named persons over a defined period of time, and subject to stated conditions. Licence refused Letter sent to applicant giving reasons for refusal. This would not prevent future applications being considered. 5

6 ANNEX 4 GUIDANCE ON EVIDENCE REQUIRED IN RELATION TO APPLICATIONS FOR LICENCES TO CONTROL PREDATORY BIRDS FOR THE PURPOSE OF THE CONSERVATION OF WILD BIRDS For licences to be issued for the purpose, as stated in the 1981 Act, of conserving wild birds, SNH would have to be satisfied that the killing of predatory birds is needed and would be effective in achieving this purpose. SNH will reach a view based on impacts within one or more of the Natural Heritage Zones (NHZs) of Scotland (see Annex 5). Scottish Government may also issue licences for the control of some predatory birds, notably ravens, but for the purpose of preventing serious damage to livestock, in particular lambs (see Annex 2). The underpinning evidence for such licences has been based on observations of attacks by ravens on lambs or sheep, resulting in death or injury. The steps below outline the sort of evidence SNH requires in order to make a decision on a licence application: 1. Details of the locality, in terms of area, estate or other details. Some observations of wild birds may be made at leks (black grouse) or at roosts (geese), and others may be of predatory birds in flocks (ravens). 2. It would help to have background on how long the problem has been of concern. Again this evidence should be backed up by observations. 3. There should be evidence of predation on wild birds by predatory birds. This could include written records of direct observations of predators killing or injuring adult or young birds, or taking their eggs. Where possible, it would help to have these observations supported by photographs (note that a licence to take photographs may be required if a Schedule 1 bird is being disturbed while it is building a nest or is in, on or near a nest containing eggs or young, or if the dependent young of a schedule 1 bird is/are being disturbed. It would help to have details on the timing of observations, the areas over which the observations were made and the numbers of predatory birds involved. 4. Information on other management measures attempted to remove or reduce predatory bird impacts, and their effectiveness, would be needed. This would satisfy the statutory requirement that SNH must be satisfied there is no other satisfactory solution before issuing a licence. If such measures have been undertaken on other estates or in other areas, this would be evidence. Annex 5 provides links to sources of information about non-lethal methods. 5. There should be evidence that the population of the wild bird species being predated is in direct need of conservation action, and secondly, that predation is either contributing to its decline. Here, we will be looking for evidence of a significant decline in the wild bird s population due to the predation, across a landscape unit such as a mountain area or woodland, farmland or moorland expanse or preferably across a larger region, typically a Natural Heritage Zone (NHZ); see Annex 5). Notwithstanding SNH will assess such evidence of changes in wild bird numbers within the wider regional (NHZ) context. Examples of a significant population decline due to predation could be: 6

7 a) at least 5% over one year, or b) at least 25% over five years. NHZ data on species population trends where available will be available from SNH if such data are not available from the applicant. The area of concern should be placed in the context of the NHZ (% extent). 6. Some wild bird species are classed as Birds of Conservation Concern, and for these a recorded 50% decline over 25 years results in red listing, and a recorded 25% decline over 25 years results in amber listing. For these red and amber listed species, we would be particularly concerned about any further declines caused by predatory birds. In a fluctuating or cyclical population of birds such as red grouse where dips and increases in populations occur naturally, we would need to be clear that the declines, or suppression at low prebreeding densities or productivity reported, are in part due to predation by the predators for which the licence is sought, and are not part of a natural cycle or fluctuation. In such cases, observed declines may be caused by other factors, such as harsh weather, habitat deterioration, parasites or other predators such as crows and foxes. The scale of these other impacts would have to be low and would need to be ruled out. Here, the applicant might find it helpful to seek the advice of a conservation body such as the Game and Wildlife Conservation Trust or British Association for Shooting and Conservation (see Annex 5 for details). 7. If the wild bird being predated is rare or the predation is at the edge of the wild bird s breeding range, we would be more concerned about the predation. For example, if the predation was on scarce dotterel breeding in southern Scotland, or on black grouse at the edges of its nesting range, this would be of particular concern. SNH would make the judgement here, though it would help to have any comments from the applicant regarding the status of the wild birds in the area, for example, if the population being predated could be shown to be a core population and likely to be sustaining edge of range populations through dispersal. 8. Where there are observations of predation by predatory birds over a period longer than five years, then we would be looking for evidence of consequent declines in local populations of wild birds. Evidence that would be helpful includes changes in numbers of relevant species of wild birds as well as any changes in predatory bird numbers over a similar time period. 9. SNH would need to be mindful of the conservation status of the predatory bird species, because in some parts of Scotland their breeding populations may be small or declining or deliberately persecuted, in which case we would have to weigh up the potential impacts of any control measures on the predatory birds themselves. This is required in order to ensure that the actions of the licensing authority are compliant with the terms of the Birds Directive, which requires that any licence issued would not lead to deterioration in the present situation as regard the conservation of, wild birds. Again, SNH would make a judgement on this, though it would be helpful to have comments from the applicant on his/her knowledge of changes in numbers in the area in question. 7

8 Example 1. The sort of evidence which could result in a licence being issued Please note that not all elements of evidence suggested here may be needed for your application, though in some cases further evidence may be required by SNH. However, we do suggest that as many of these lines of evidence as possible are presented. Example of an application for a licence to take ravens in 2010 and 2011 to minimise the impact of predation on black grouse. This is a fictitious example provided for illustrative purposes only. 1. Prey & predator species, locality, observer Species of conservation concern: 1. Black Grouse Notes for applicants: Evidence must be presented for each species of concern. SNH will consider the status of each named species - BOCC listing; SPEC; EU Birds Directive Annex; Species Framework. Predator(s): 1. Ravens 2. Notes for applicants: Evidence must be presented for each predator species. SNH will consider the status of each named species - BOCC listing; SPEC; EU Birds Directive Annex; Species Framework. Area and habitat: 2000 ha of hill edge scrub, moorland and semi-mature coniferous plantation over 2 watersheds centred on Ben Affleck. The area lies within NHZ 20 (Border Hills). Notes for applicants: Describe the type and size of available habitat. Indicate if this is sufficient to maintain a viable population of the prey species of concern. Can you place this in the context of the local NHZ? (If not, SNH will attempt to do so). Observer(s) (named): A. Forester, H. Keeper, I. Surveyor Notes for applicants: Give the names of observers. Observers should have a reasonable knowledge of the area and the relevant signs of predation. 2. Timing of predation Timing: Ravens observed in increasing numbers in this area over the last 4 years in period May June. Notes for applicants: The timing of incidents/ observations may be important in assessing the need for licensable actions. Please give timings as precisely as you can. 3. Evidence of predation. Extent: 8

9 In 2010, two predated black grouse nests were found with typical signs of corvid predation on the eggs in mid-may. Could not be certain that the predator was raven but ravens were seen in the area of the nest. Crows are controlled in the area. Local prey presence: See attached sheet for detailed observations for 2009 and In summary: Family party of ravens (average 6 individuals of adults and recently fledged young) has been observed (total 20 individual daily records over 2 years) over black grouse nesting and chick habitat in the last two weeks of May. Direct observations have been made of the ravens interest in and presumed attacks on black grouse nest sites. Ravens have been observed watching known black grouse nesting habitat and dropping down to search on the ground (adult ravens were observed doing this prior to the fledglings leaving the nest). Notes for applicants: Provide any records of direct signs of predation or patterns of behaviour which might indicate predation. These should ideally span a period of time and have been recorded around the time of the observation. 4. Predation reduction We have not been able to find reported mitigation techniques available for this type of predation by this species. Provision of alternative food to divert the hunting ravens may reduce predation but there is no research to back this up. We feel there is risk of an increase in the local raven population size at this time of year by doing so. At this site there are inadequate roads to practicably supply diversionary food to this area. Notes for applicants: What alternative methods have you tried to conserve the species of conservation concern and/or to reduce predation pressure on it? How did these work? If you have not tried an apparently relevent method, please note why. What else might you try? 5. Local and area population of prey species. Site population: In year of application the estate counts showed there were three leks each of an average four individual lekking male black grouse within this area. The leks were within 3-4 km of each other. Estate lek count data from this site over the last 4 years indicates the lek has shrunk in size by 8%. Notes for applicants: Please present any count data you have for your area and, if you have them, for a wider geographic area. Do the data indicate a trend? Local population: These leks are separated by more than 10km from the next suitable black grouse habitat. Lek data from neighbouring areas collected by the local study group confirm a decline in the population size over both 10 and 2-3 year periods by 10%. Lek count data for this area for the last 5 years is attached. Black grouse survey counts show the NHZ area population of lekking black grouse to be as low as 100 and means the described population would be more than 10% of the regional total. 9

10 Notes for applicants: Please present any count data you have for your wider area. SNH will attempt to assess these data in the context of the relevant NHZ. 6. Other factors affecting prey species Advice has been sought and provided by an independent advisory service. The advice is however commercially confidential. In summary: Habitat: An application has been made to restructure some woodland to benefit wildlife but this will not have a beneficial effect before We feel the population of black grouse may have fallen too low to be recoverable by this point. Predator control: Two cage traps and four mobile traps operated within best practice guidelines. Carrion crows are taken in this area on an irregular basis despite this level of trapping. An active and realistic (in the context of the dense forest habitat) fox and mustelid trapping programme is also in place on the estate. Harvest: We confirm that this population has not been shot or otherwise harvested over the last 10 years and there is no intention to do so unless the population achieves industry guideline levels. Disease: Disease and tick issues are not known to threaten this population. There are no lowground game-birds released in this area. Disturbance: Formal access to visit leks for monitoring and viewing is managed by the estate keepering team. Notes for applicants: Are you implementing all legal management measures to support the species of conservation concern? If there are apparently relevant legal means that you are not implementing, please explain why. What other factors may be affecting the viability of the population of the species of conservation concern eg habitat management, disease, disturbance? 7. Range of the prey species of concern BTO atlas data suggests this area is at the edge of the black grouse range and national surveys suggest the range of the black grouse population has shrunk in this area due to habitat change and associated predation. Notes for applicants: Note if the site is on the edge of the species current range and how well (or not) populations of the species of conservation concern in the area subject to your applications are connected to other populations of the species. If this information is not available to you, SNH may require/ attempt to source it. SNH may need to carry out some additional work to clarify what is meant by the edge of range for possible prey and predator species but this should not delay applications with other strong evidence. 8. Long term trend in prey species 10

11 Nationally, black grouse is a species of conservation concern with particular declines noted in this region of Scotland. We note that lek counts suggest 10 years ago lek sizes were larger and the grouse population more numerous. The estate s black grouse bag data from suggests a decline in black grouse population size in this area despite a then modest harvest and little significant change in habitat. Notes for applicants: Provide any available evidence that the prey species is declining nationally and/or at NHZ level. SNH will consider if this is this threatening the species conservation status. 9. Trends of predator species The increase in the number of ravens in this region is well known. 10 years ago no ravens were observed in this area on a regular basis. Recently the population would appear to have reached consistently high levels with resident breeding birds and visiting flocks. Licences have been issued in this area for the control of ravens to protect livestock and there are no known concerns over this affecting the raven population in this area. Notes for applicants: Provide any available evidence that the prey species is declining nationally and/or at NHZ level. SNH will consider if this is this threatening the species conservation status. Note if the site is on the edge of the predatory bird current range and how well (or not) populations of the predatory bird in the area subject to your applications are connected to other populations of the species. If this information is not available to you, SNH may require/ attempt to source it. SNH may need to carry out some additional work to clarify what is meant by the edge of range for possible prey and predator species but this should not delay applications with other strong evidence. Note Consistent evidence presented in this way would help SNH, in this case, to issue a licence to control ravens for the protection of black grouse conservation status. In this case, the licence would cover the non-lethal scaring and, failing that, the killing of ravens during the two year period. The licence would specify the number of ravens to be scared/killed (here the family party of ravens). Not all of the above lines of evidence may be required for a successful application. However, fewer individual elements may mean more detail is required for those submitted. 11

12 Example 2. The sort of evidence which would not result in a licence being issued Example application to kill ravens to protect red and black grouse on an upland estate. This is a fictitious example provided for illustrative purposes only. 1. Prey & predator species, locality, observer Species of conservation concern: 1. Black Grouse 2. Red Grouse 3. Notes for applicants: Evidence must be presented for each species of concern. SNH will consider the status of each named species - BOCC listing; SPEC; EU Birds Directive Annex; Species Framework. Predator(s): 1. Ravens 2. Notes for applicants: Evidence must be presented for each predator species. SNH will consider the status of each named species - BOCC listing; SPEC; EU Birds Directive Annex; Species Framework. Area: 200ha mature conifer forestry with moorland, scrub and grass patches in Glen Close. Notes for applicants: Describe the type and size of available habitat. Indicate if this is sufficient to maintain a viable population of the prey species of concern. Can you place this in the context of the local NHZ? (If not, SNH will attempt to do so). Observer(s) (named): Non-resident agent Notes for applicants: Give the names of observers. Observers should have a reasonable knowledge of the area and the relevant signs of predation. 2. Timing of Impact Timing: Ravens are regularly seen in the Glen often at a local rubbish dump during the winter. Ravens are often here in August during stalking. Notes for applicants: The timing of incidents/ observations may be important in assessing the need for licensable actions. Please give timings as precisely as you can. 3. Evidence of predation Impact: Black grouse are being affected by ravens and there are fewer lekking birds. 12

13 Notes for applicants: Provide any records of direct signs of predation or patterns of behaviour which might indicate predation. These should ideally span a period of time and have been recorded around the time of the observation. 4. Predation reduction We have tried firing shots into the air to disturb the ravens but they are not affected. Notes for applicants: What alternative methods have you tried to conserve the species of conservation concern and/or to reduce predation pressure on it? How did these work? If you have not tried an apparently relevent method, please note why. What else might you try? 5. Local and area population of prey species Site population: In year of application one lek of two male black grouse. Notes for applicants: Please present any count data you have for your wider area. SNH will attempt to assess these data in the context of the relevant NHZ. Local population: This is the smallest lek in this area. There are some leks which are much larger and more productive. The next lek is about 5km away on a neighbouring moor. Notes for applicants: Please present any count data you have for your wider area. SNH will attempt to assess these data in the context of the relevant NHZ. 6. Other factors affecting prey species Habitat management: No money is available for woodland restructuring. Predation control: 2 fixed cage traps are used by a part-time keeper. Carrion crows are regularly taken in this area. Other predation: property. Raven control is essential because snaring is not allowed on this Notes for applicants: Are you implementing all legal management measures to support the species of conservation concern? If there are apparently relevant legal means that you are not implementing, please explain why. What other factors may be affecting the viability of the population of the species of conservation concern eg habitat management, disease, disturbance? 7. Range of prey species National surveys suggest this is a core black grouse area. Notes for applicants: Note if the site is on the edge of the species current range and how well (or not) populations of the species of conservation concern in the area subject to your applications are connected to other populations of the species. If this information is not available to you, SNH may require/ attempt to source it. SNH may need to carry out some additional work to clarify what is meant by the edge of range for possible prey and predator species but this should not delay applications with other strong evidence. 13

14 8. Long term trend in prey species Black grouse bag record data are provided from , 1997, 1999, 2004 Notes for applicants: Provide any available evidence that the prey species is declining nationally and/or at NHZ level. SNH will consider if this is this threatening the species conservation status. 9. Trend of predator species Groups of ravens have been seen in this area since last year with a few individuals seen before then. The raven population has increased nationally over the last 20 years. Notes for applicants: Provide any available evidence that the prey species is declining nationally and/or at NHZ level. SNH will consider if this is this threatening the species conservation status. Note if the site is on the edge of the predatory bird current range and how well (or not) populations of the predatory bird in the area subject to your applications are connected to other populations of the species. If this information is not available to you, SNH may require/ attempt to source it. SNH may need to carry out some additional work to clarify what is meant by the edge of range for possible prey and predator species but this should not delay applications with other strong evidence. Note Some of the evidence in this submission could be used in support of a successful application, but overall there is too little local evidence of impact and conservation benefit provided in the whole document to support the issue of a licence. 14

15 USEFUL INFORMATION, REFERENCES AND DEFINITIONS OF KEY TERMS ANNEX 5 The British Association for Shooting and Conservation, (BASC) ( ) is a national representative body for sporting shooting. It provides advice and guidance to members, including Birds of prey and pheasant pens. A practical guide for game managers and gamekeepers. Traps and snares (currently under review) Trapping pest birds ( Information sheet on general licences for the control of certain bird species in the UK ( ) The Game & Wildlife Conservation Trust, (GWCT) ( ) conducts research into the conservation of game and associated flora and fauna. You can obtain conservation guides, research and advice on its website and from its local advisors. The Heather Trust ( provides advice and guidance to help promote moorland management. Definitions of key terms used in this guidance A wild bird is defined in the following note under definitions given in the 1981 Act, section 27. A predatory bird is any bird of a species whose diet includes other animals. Birds of Conservation Concern (BoCC). Leading governmental and nongovernmental conservation organisations in the UK review the population status of UK bird species every five years. Seven quantitative assessment criteria are used to assign each species to a red, amber or green list reflecting high, medium and low levels of conservation concern. Full details of the criteria and the current lists can be found on the British Trust for Ornithology website, at Natural Heritage Zones (NHZ s) 21 zones, each with a distinctive natural heritage identity resulting from the interaction of geology, landforms, landscapes, wildlife and land use. A map of these zones is provided below. Further details of each zone are available online at 15

16 Guidance on the legal status of red grouse, pheasant, grey partridge and red-legged partridge as wild birds These four species are listed in Annex II/I of the EC Birds Directive which means that their populations can be hunted, subject to the provisions of Article 7 of the Directive. They are afforded protection by the Game Acts outwith specified open shooting seasons (eg 1 October - 1 February for pheasant; 1 September 1 February for partridges; 12 August 10 December for red grouse). They are also protected under the Wildlife and Countryside Act 1981 (as amended) [the 1981 Act]. There has been much debate about the legal status of these species. This note explains SNH s current understanding, but without liability to interested parties, who should, if appropriate, obtain independent legal advice. The application of this interpretation in not known to have been tested in Court. Definitions and relevant sections of the 1981 Act (Part I) Section 1 of the 1981 Act gives legal protection to all wild birds, their nests and eggs. For the purpose of this section, a wild bird does not include any bird which is shown to have been bred in captivity. Section 5 of the 1981 Act covers prohibited methods of killing or taking wild birds. Section 16 of the 1981 Act covers licensing. Licences are available for specific purposes, to carry out actions which could otherwise constitute an offence under the terms of the 1981 Act. Section 27 of the 1981 Act covers interpretation of Part I of the Act, and provides the following definitions, which are relevant in this case: Wild bird means any bird of a species which is ordinarily resident in or is a visitor to any member State or any European territory of any member State in a wild state but does not include poultry or, in relation to section 5 (certain methods of killing or taking) and to section 16 (licensing), game birds. Game bird means any pheasant, partridge, grouse (or moor game), black (or heath) game or ptarmigan. Livestock includes any animal which is kept (a) for the provision of food, wool, skins or fur; (b) for the purpose of its use in the carrying on of any agricultural activity; or (c) for the provision or improvement of shooting or fishing. In respect of the definition of livestock, an animal will include a bird unless specifically excluded (see eg the definition of "wild animal" in the same section). 16

17 On the application of these definitions to red grouse, pheasants and partridges Red grouse are game birds, supported in some parts by intensive management, sometimes involving capture and handling; they are not livestock. For the purpose of licensing, they are wild birds. Red-legged partridges and pheasants in or about a release pen, reliant on a gamekeeper for food, are being "kept" and thereby qualify as livestock. The definition of "kept" does not require the animal to be physically restrained. Outwith release pens, where these birds are still being fed or cared for (as opposed to having escaped, strayed and not being cared for) these birds are still livestock. If they stray, and are not deliberately cared for and/or kept they become game birds (and wild birds for licensing). Licensing implications in relation to the application of section 16 licences Red grouse on the hill. A licence could be sought to kill a wild bird (such as a raven), otherwise prohibited, on the basis of "conserving wild birds" (under Section 16(1)(c) of the Act), in this case the red grouse. For licensing purposes the red grouse is considered to be a wild bird. Such a licence, normally from SNH, would allow the control of the raven in the interests of protecting the red grouse that enjoys protection as a wild bird. In this case, the protection afforded would be for the wild bird s conservation, and not for the maintenance of a shootable surplus of red grouse. Black game and grey partridges. As for red grouse, if not captive-bred, these birds are considered to be wild birds for licensing purposes. If captive bred then for licensing purposes then SNH considers tem in the same way as pheasants below. Pheasant and red-legged partridges in and around pens. As above, these birds are livestock when in pens and when still being cared for (outside of pens). A licence to control wild birds for the purpose of preventing serious damage to livestock could be sought from and issued by the Scottish Government (under Section 16(1)(k) of the Act) if such circumstances arose. The point at which a reared game bird becomes a wild bird is not defined in law. For the purposes of licensing, birds that have yet to become independent of human intervention (such as feeding, veterinary care, provision of artificial shelter) may still be considered to be livestock. 17

18 Map 1: Scotland s 21 Natural Heritage Zones 1. Shetland 2. Orkney & Northern Caithness 3. Coll, Tiree and the Western Isles 4. North Western seaboard 5. The Peatlands of Caithness & Sutherland 6. Western Seaboard 7. Northern Highlands 8. Western Highlands 9. North Eastern Coastal Plain 10. Central Highlands 11. Cairngorms Massif 12. North East Glens 13. East Lochaber 14. Argyll West & Islands 15. Loch Lomond, The Trossachs & Breadalbane 16. Eastern Lowlands 17. West Central Belt 18. Wigtown Machars & Outer Solway Coast 19. Western Southern Uplands & Inner Solway 20. Border Hills 21. Moray Firth 18