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OUTER HOUSE, COURT OF SESSION
[2021] CSOH 108
P1102/20
OPINION OF LADY CARMICHAEL
In the petition
TREES FOR LIFE
Petitioner
For
JUDICIAL REVIEW
Petitioner: O'Neill QC, Blair; Burness Paull
First Respondent (NatureScot): Crawford QC, Welsh; Harper McLeod
Third and Fourth Respondents (NFU Scotland and Scottish Land Estates Ltd): J Findlay QC,
Colquhoun; DAC Beachcroft LLP
21 October 2021
Introduction
[1]
Beavers became extinct in Scotland some centuries ago. A planned release of beavers
in Knapdale began in 2009. Another population of beavers in Tayside has grown from
accidental or illegal releases. Following various studies and reports, the Scottish Ministers
decided that both of these populations should remain, and beavers should be a European
protected species ("EPS") with effect from 1 May 2019: the Conservation (Natural Habitats,
etc) Regulations 1994 (SI 1994/2716) ("the 1994 Regulations") as amended by Conservation
(Natural Habitats, etc) Regulations 2019 (SSI 2019/64).
2
[2]
The activities of the beavers in Tayside have come into conflict with agricultural
interests there. Beavers build dams in waterways and burrow into river banks adjacent to
and on agricultural land. The 1994 Regulations contain provision for licensing actions which
are otherwise prohibited, including the killing of beavers. NatureScot, the first respondent,
is responsible for the licensing decisions.
[3]
The petitioner is an environmental charity. It asserts that the first respondent grants
licences for the lethal control of beavers to all and any applicants who report beaver activity
on or near to what the first respondent classifies as prime agricultural land ("PAL"). The
petitioner submits that EU law requires that lethal control must always be treated as a last
resort, and that to issue licences in this way is unlawful.
[4]
The third and fourth respondents have entered the process to represent the interests
of those who hold such licences, the great majority of whom are members of one of the two
organisations.
[5]
The petitioner claims that the first respondent has a de facto policy or practice of
granting licences for the lethal control of the population of Eurasian beavers in Scotland
without due and proper consideration of the necessity and proportionality of issuing a
licence in each individual case. The claim is based on the contents of internal guidance and
published policies of the first respondents, and on the content of call logs, emails, and site
reports relating to 21 licences. The petitioner lists the numbers of 49 licences granted for
lethal control since May 2019, and seeks reduction of all those licences. The petitioner also
seeks nine declarators. They reflect complaints that the first respondent:
(a)
failed to interpret and apply the 1994 Regulations correctly, and in
accordance with the requirements of EU law;
3
(b)
was not entitled to take into account a document entitled Beaver Licence
Assessments Prime Agricultural Land ("the PAL Assessment");
(c)
failed to give reasons for granting licences;
(d)
had a blanket policy of granting licences for lethal control where applications
related to PAL, and failed to consider the individual circumstances of each
application; and
(e)
should have reviewed and revoked the licences that it had granted
authorising lethal control.
Only one of these complaints is well-founded, for the reasons explained more fully below.
The first respondent failed to give reasons for granting licences. It is a requirement of EU
law that reasons be given when licences of this sort are granted.
The 1994 Regulations
[6]
The first respondent is the "appropriate nature conservation body" for Scotland, in
terms of Regulation 4(1) of the 1994 Regulations. Regulation 39(1) of the 1994 Regulations
makes it an offence:
(a)
deliberately to capture or kill a wild animal of a European protected species;
(b)
deliberately to disturb any such animal;
(c)
deliberately to take or destroy the eggs of such an animal; or
(d)
to damage or destroy a breeding site or resting place of such an animal.
[7]
Regulation 44 allows for those activities to be carried out for specified purposes,
including preventing serious damage to livestock, foodstuffs for livestock, crops, vegetables,
fruit, growing timber or any other form of property or to fisheries: regulation 44(2)(g).
Before granting a licence, the first respondent must be satisfied that there is no satisfactory
4
alternative, and that the action authorised will not be detrimental to the maintenance of the
population of the species concerned at a favourable conservation status in their natural
range: regulation 44(3)(a) and (b).
[8]
The 1994 Regulations are the enactment in domestic law of Council Directive
92/43/EEC ("the Habitats Directive"). Article 12 prohibits various activities, and Article 16
allows for derogations from the prohibition in Article 12, provided that there is no
satisfactory alternative and the derogation is not detrimental to the maintenance of the
populations of the species concerned at a favourable conservation status in their natural
range. There is no suggestion that the Habitats Directive has been incorrectly transposed.
[9]
Article 16(2) and (3) provides that member states are to report to the Commission
every two years, specifying
(a)
the species which are subject to the derogations and the reason for the
derogation, including the nature of the risk, with, if appropriate, a reference to
alternatives rejected and scientific data used;
(b)
the means, devices or methods authorized for the capture or killing of animal
species and the reasons for their use;
(c)
the circumstances of when and where such derogations are granted;
(d)
the authority empowered to declare and check that the required conditions
obtain and to decide what means, devices or methods may be used, within what
limits and by what agencies, and which persons are to carry out the task;
(e)
the supervisory measures used and the results obtained.
[10]
The Habitats Directive provides definitions of "conservation status" and
"favourable", at Article 1(i):
5
"conservation status of a species means the sum of the influences acting on the
species concerned that may affect the long-term distribution and abundance of its
populations within the territory referred to in Article 2;
The conservation status will be taken as `favourable' when:
--
population dynamics data on the species concerned indicate that it is
maintaining itself on a long-term basis as a viable component of its natural
habitats, and
--
the natural range of the species is neither being reduced nor is likely
to be reduced for the foreseeable future, and
--
there is, and will probably continue to be, a sufficiently large habitat
to maintain its populations on a long-term basis"
[11]
There was no dispute that the court should construe the regulations purposively so
as to serve the aims of the Habitats Directive. Parties agreed that the precautionary
principle was a principle of EU law which was relevant to the meaning and effect of the
1994 Regulations. In construing the 1994 Regulations I could derive assistance not only from
the jurisprudence relating to the Habitats Directive, but that relating to Directives
79/409/EEC and 2009/147/EC on the conservation of wild birds ("the Birds Directives").
[12]
The 1994 Regulations are retained EU law: European Union (Withdrawal) Act 2018
("EUWA"), sections 1B(7), 6(7).
Submissions summary
Petitioner
[13]
The first respondent required to consider in relation to every licence authorising
lethal control whether there was a satisfactory alternative to lethal control. Killing a beaver
was a "final act" with obvious consequences for the conservation status of the species, in
that the population would be diminished with each killing. It would also have an impact on
the genetic diversity of the pool of beavers available to breed, which, again, would have an
adverse effect on the conservation status of the species. The same could not be said for
6
non-lethal control measures. If beavers were captured and moved that would not have the
same consequence for the conservation status of the species. Derogations required to be
interpreted strictly, and if domestic jurisprudence suggested otherwise, then it was wrong.
[14]
The petitioner claimed that it had evidence which demonstrated that the first
respondent granted licences for the lethal control of beavers as a matter of course to "all and
any applicants" who reported beaver activity on or near to PAL. It was a policy of first
resort. That was unlawful.
[15]
The court could not second guess the rationale of the first respondent. The first
respondent bore the onus of satisfying the court that the standards and principles of EU law
were not breached by its policy or practice of issuing lethal control licences for beavers: Case
C-685/15 Online Games Handels GmbH and others v Landespolizeidirektion Oberösterreich
ECLI:EU:C:2017:201, opinion of Advocate General Sharpston, paragraph 53; Joined Cases C-
52/16 & C-113/16 SEGRO Kft v Vas Megyei Kormányhivatal Sárvári Járási EU:C:2018:157
[2018] 2 CMLR 36, paragraph 85.
[16]
The court had to be satisfied that the intended aim of the lethal control policy or
practice was sufficiently important to justify the killing of beavers; that there was a rational
connection between the policy and the aim; that it was the least restrictive alternative that
is, that there was no alternative lawful measure which was at least as effective in achieving
the identified aim; and as to proportionality stricto sensu that there was a fair balance
between the importance of the European protected status of beavers and the land rights of
those represented by the third and fourth respondents.
[17]
The first respondent must substantiate any justification for its policy by evidence,
and the court must examine objectively whether it might reasonably be concluded from the
evidence that the lethal control policy was appropriate for the attainment of the identified
7
legitimate objectives pursued, and whether it was possible to attain those objectives by
measures that were less destructive of, or disruptive to, beavers: by analogy with Case C-
333/14 The Scotch Whisky Association and others v The Lord Advocate ECLO:EU:C:2015:845
[18]
The petitioner relied on Case C-674/17 Luonnonsuojeluyhdistys Tapiola Pohjois-Savo-
Kainuu Ry v Risto Mustonen and others ECLI: EU:C:2019;394, paragraphs 28-30, 41, 44-57, 61,
66-67. The case concerned the lawfulness of permits issued by Finnish authorities for the
hunting of wolves. The petitioner derived the following propositions from it.
(1)
The first respondent must examine the existing conservation status of the
beaver populations before granting any licence: see also Commission Guidance
Document on the Strict Protection of Animal Species of Community Interest under the
"Habitats" Directive 92/43/EEC ("Commission Guidance"), page 60 paragraph 43.
(2)
The decision to grant a licence under Article 16(1) of the Habitats Directive
must be intended to deal with precise requirements and specific situations: see also
Commission Guidance Document, page 56, paragraph 14.
(3)
Whether a licence in derogation was appropriate and necessary in any
specific case depended on the aim or aim it is said that it pursued: see also opinion of
Advocate General Kokott in Case C-342/05 Commission v Finland EU:C:2006:75,
paragraph 25; opinion of Advocate General Sharpston in Case C-557/15 Commission v
Malta EU:C:2017:613, paragraph 67.
(4)
The requirement of proportionality meant that the licensing decision must
define its objectives clearly, precisely and with sufficient and site relevant supporting
evidence based on the best available rigorous scientific data: see also eg Case C-
243/15 Lesoochranárske zoskupenie VLK EU:C:2016:838, paragraph 66.
8
(5)
The first respondent could not define the problem that it sought to address
artificially and thereby improperly exclude other potential satisfactory solutions: see
also opinion of Advocate General Sharpston in Case C-557/15 Commission v Malta
EU:C:2017:613, paragraph 68.
(6)
A derogation could only be granted on the basis of a decision containing a
clear and sufficient statement of reasons which referred to the reasons, conditions
and requirements laid down in Article 16(1): see also Case C-342/05 Commission v
Finland EU:C:2007:341, paragraphs 25, 30-31, 47.
(7)
If significant doubt remained as to whether or not a derogation would be
detrimental to the maintenance or restoration of populations of the species concerned
at a favourable conservation status, the member state must not grant a licence for the
derogation in question: see also C-127/02 Waddenvereniging and
(8)
If the first respondent produced insufficient evidence to demonstrate the
compatibility of its policy on lethal control with EU law, then the court required to
draw inferences adverse to the first respondent: see also Case C-3/17 Sporting Odds
paragraph 59.
(9)
The conservation status of a species must be assessed at local level, at the
level of the whole member state, and sometimes across national boundaries.
[19]
The court required to provide an effective remedy: Anwar v Secretary of State for
Business Energy and Industrial Strategy 2020 SC 95, paragraphs 9, 52.
9
Respondents
[20]
There was no hierarchy among the various forms of derogation. The "no satisfactory
alternative" test did not apply to the type of the derogation. The respondent had to consider
whether there was an option that would meet the objective of preventing serious harm and
which did not involve "a derogation". All the cases referred to by parties related to
situations in which the court was considering derogation as opposed to no derogation: see
eg Case C-10/96 Ligue Royale Belge pour la Protection des Oiseaux v Region Wallonne, Advocate
General Fennelly, paragraph 33; and Tapiola, on which the petitioner relied.
[21]
The petitioner's emphasis on capture and translocation was misplaced, as that
activity was also a derogation, which required a licence. The first respondent had a
discretion as to what licence to issue, and exercised it in a manner informed by its experience
and expertise. There were significant issues associated with capture and translocation. The
public interest required monitoring and controlling particular species to prevent serious
damage to various forms of property in accordance with regulation 44. There was no
general duty in public law to give reasons for a decision: R (Doody) v Secretary of State for the
paragraph 32. There was no statutory obligation to give reasons.
[22]
relating to the equivalent English regulations. It vouched the following propositions. The
decision maker was not expected to establish all considerations to absolute certainty, and
was expected to consider degrees of likelihood as part of the decision-making process:
paragraph 41. When dealing with scientific expert opinion the decision maker had an
enhanced margin of appreciation: paragraph 43. There was no duty to give reasons, and no
requirement for public involvement in the decision making process: paragraph 47.
10
[23]
The PAL Assessment was an internal guidance document. It set out in detail how the
first respondent expected the 1994 Regulations to be applied in relation to PAL. PAL was
land capable of being used to produce a wide range of crops, within a favourable climate,
with slopes of no greater than 7 degrees, and with soil that was at worst imperfectly drained.
That description of land was classified as Class 1 to Class 3.1 under the Land Capability for
Agriculture in Scotland system produced by the James Hutton Institute.
[24]
The first respondent had concluded that the "serious damage" test in
regulation 44(2)(g) was likely to be met on PAL because of the nature of the land. The first
respondent had reached that conclusion following a review of published studies and expert
knowledge, supplemented by field visits by the first respondent's staff and specialist
advisers over a period of years. There was no suggestion that the studies available to the
first respondent were predicated on any fundamental error. The first respondent did not
require to prove matters to a standard of absolute scientific certainty; to impose such a
requirement would result in administrative paralysis.
[25]
The petitioner had no evidence that the first respondent had a policy of "rubber
stamping" applications. The petitioner sought to draw impermissible inferences from
various documents it had recovered, including call logs, and licences which had been
granted. The call logs were simply a "snapshot" of a particular point in the licensing
process. Not all applications for lethal control licences had been granted. The first
respondent was entitled to conclude that the serious damage test was likely to be met in
relation to PAL. It was not necessary to wait until damage had occurred before issuing a
licence authorising a derogation.
[26]
Whether the conservation status of beavers was favourable was a multifactorial
judgment taking into account whether the species was maintaining itself as a viable
11
component of its habitat in the long term in its natural range. The first respondent had
concluded in the light of the best available scientific information that the conservation status
of beavers was improving and that regulated and licensed lethal control would not be
detrimental in maintaining that improving situation.
[27]
Insofar as the petitioner submitted that the precautionary principle required the first
respondent (a) to disprove the petitioner's "spurious" claims and (b) do to so beyond
reasonable doubt, the court should reject that. The principle was primarily one for risk
management where a process had the potential to have a dangerous effect, but that could
not be determined with certainty. The principle was nowhere defined. It was designed to
assist decision makers, and not to hinder them: European Commission Communication COM
(2000) 1: paragraph 5 of summary within the communication; page 7; page 18; page 20;
page 21. The principle protected decision makers from accusations that they had acted or
failed to act in the absence of absolute scientific certainty. It was for the petitioner to adduce
evidence that decisions were made unlawfully or irrationally.
[28]
Where decisions in the field of environmental law were taken on the basis of
scientific information, the court should not decide between the differing views of experts in
a technical area. In the absence of scientific consensus, the court could not substitute its
view for that of the decision-maker. The standard of review was "manifest error", or
Wednesbury unreasonableness: RSPB v Scottish Ministers 2017 SC 552, paragraph 204;
Abbotskerswell Parish Council v Secretary of State for Housing, Communities and Local Government
still required to make decisions, and had to do their best with the available knowledge and
expertise, and there was no basis for construing the regulations narrowly: R (McMorn) v
Natural England and another [2016] PTSR 750, paragraphs 141, 145. Mere disagreement with
12
the decision-maker's weighing up of evidence would not suffice: Wild Justice v Natural
[29]
Decided cases relating to what was required by way of an appropriate assessment
under domestic legislation implementing the Habitats Directive were relevant. The
authority must be satisfied that the project in question will not adversely affect the integrity
of the site concerned. A high standard of investigation was required, but the decision rested
on the judgment of the authority. Where certainty could not be established, it would be
necessary to work with probabilities and estimates, which must be identified and reasoned:
Abbotskerswell, paragraphs 87-99 and authorities cited there. It was for the first respondent
to determine what matters were material: R (Friends of the Earth Ltd and another) v Secretary of
[30]
The third and fourth respondents' submissions were largely aligned with those of the
first respondent. Senior counsel made additional submissions that the first respondent had
no duty to give reasons. One concern on the part of the third and fourth respondent was the
risk that individual licence holders might be identified. By contrast with provisions dealing
with, for example, environmental impact assessments, the provisions authorising derogation
did not require publicity, or the involvement of the public. There was a requirement that
member states provide reports to the Commission there was no requirement that the
public generally be informed as to the reasons for derogations. All of that militated against
there being a duty to give reasons.
Decision
[31]
I deal first with interpretation of the regulations, as it informs my approach to much
of the material produced by parties. I then turn to the approach of the first respondent to
13
licensing on PAL, and translocation, as reflected in its own internal guidance and published
policies, and the material on which the first respondent relies as supporting its approach,
and my own conclusions about that. Finally I deal with the contentions that the first
respondent engaged in various generalised unlawful practices.
Interpretation and application of the regulations
[32]
The requirements of proportionality are reflected in the terms and structure of the
regulations. There are particular aims which the regulations (and Directive) expressly
recognise as being of such a nature as to have the potential to justify derogations including
lethal control. There was no dispute that there required to be a rational connection between
the derogation and the aim in question.
[33]
For a derogation to be lawful, the first respondent must consider whether there is a
satisfactory alternative to granting a licence. A licence is required for anything that would
constitute a derogation under Article 16 of the Directive. The EU jurisprudence to which
parties referred is concerned with the need to justify a derogation by means of scientific
evidence, and the need to demonstrate why derogation has been necessary that is to
demonstrate the absence of an alternative option which does not involve derogation. That
jurisprudence does not engage with the situation where the authority has reached a
conclusion that there is no option but to derogate, but has a range of possible options, all
involving derogation.
[34]
The petitioner relied on Tapiola. The Finnish Wildlife Agency authorised the killing
of wolves for population management purposes with the aim of reducing the unlawful
killing of wolves, and thereby improving the conservation status of the wolf population.
The referring court asked whether and under what conditions Member States could
14
authorise hunting for population management on the basis of Article 16(1)(e) of the Habitats
Directive.
[35]
The decision turned first on the circumstance that Finland had not provided
evidence that the legal hunting of a protected species reduced poaching to an extent that
would have an overall positive effect on the conservation of wolves: paragraphs 45, 46. The
following points emerge from it. The national authority must be able to support, on the
basis of rigorous scientific data, the proposition that the derogation is capable of achieving
the aim in question. The decision authorising derogation must provide a clear and sufficient
statement of reasons as to the absence of a satisfactory alternative to derogate. That
objective is not met when the derogation decision does not contain any reference to the
absence of any other satisfactory solution or any reference to relevant technical, legal and
scientific reports to that effect: paragraphs 49, 50.
[36]
It is clear from the language used in paragraph 47 that the satisfactory alternative
must not involve derogation:
"... such a derogation may only be granted where there is no alternative measure
that could achieve the objective pursued in a satisfactory manner, whilst complying
with the prohibitions laid down in [the Habitats Directive]."
That is also clear from the emphasis in paragraph 48 on the need to give priority to measures
that are not derogations.
[37]
So far as the duty to give reasons is concerned, the CJEU was concerned only with
reasons for derogating, as opposed to not derogating. The authority must consider first
whether the derogation is capable of meeting one of the permitted objectives. It must then
consider whether there is a satisfactory alternative which is not a derogation. The following
passages also indicate that the "satisfactory alternative" must not involve derogation: Case
C-10/96 Ligue Royale Belge pour la Protection des Oiseaux v Region Wallonne, Advocate
15
General Fennelly, paragraph 33; Case C-557/15 Commission v Malta, Advocate
General Sharpston, paragraph 68.
[38]
Perhaps the strongest potential support for the petitioner's construction of "no
satisfactory alternative" came from footnote 32 in the opinion of Advocate General Ře in
Tapiola:
" ... the Federal Republic of Germany and the Kingdom of Sweden, have granted
derogations under art 16(1)(e) of the Habitats Directive intended to prevent poaching
without killing wolves. To my mind, the fact that other Member States have been
able to resolve an identical problem without resorting to a derogation permit, if that
is the case, whilst not of itself conclusive, is strong circumstantial evidence that there
is an alternative solution to the derogation envisaged."
The Advocate General states initially that the measures adopted by Germany and Sweden
are derogations, but goes on to say that they have not had to resort to a derogation permit.
On the assumption that the Advocate General means that the member states in question did
not have to resort to a derogation in the form of authorising lethal control, I make the
following observations. The Advocate General is looking at the potential evidential
significance of the circumstance that derogations short of lethal control have been adopted
in some territories. He does not say that the national authority requires to justify choosing
one derogation rather than another, or that the "satisfactory alternative" can itself involve a
derogation. The passage is not adopted or developed in the reasoning of the court.
[39]
The authority must ask itself first whether it is seeking to serve one of the purposes
recognised in the regulations. It must ask itself whether the measure which is proposed is
capable of meeting that purpose.
[40]
If it is, then it must ask itself whether there is a measure which is not a derogation
which would serve the purpose satisfactorily. If there is such a measure, then derogation
will not be lawful.
16
[41]
If the respondent reaches the conclusion that there is no measure which is not a
derogation which will serve the purpose in question, it must ask a further question, namely
whether the derogation will be detrimental to the maintenance of the population of the
species at a favourable conservation status in its natural range. If the answer is yes, then
there can be no lawful derogation. If the answer is no, then the derogation will be lawful. In
a situation where there is more than one derogation which would serve the purpose in
question, but one derogation would not affect adversely the favourable conservation status
of the species, and the other or others would, then only the first would be lawful. In that
sense there may be a hierarchy of derogations, but it is one imposed by the requirements of
regulation 44(3)(b), not 44(3)(a). The petitioner's analysis tends in my view wrongly to
conflate these two requirements. The structure of the regulations reflects the importance of
avoiding derogation in the first place.
[42]
It is not necessary to approach the "least restrictive alternative" or "proportionality
stricto sensu" in the manner for which the petitioner contended. The regulations impose
particular requirements as to the way in which the first respondent must approach
proportionality, by virtue of the requirements of regulation 44(3)(a) and (b). In so doing
they reflect the terms of Article 16 of the Habitats Directive.
[43]
The only reference to proportionality stricto sensu to which my attention was drawn
in authorities relating to the Habitats Directive was in Tapiola in the opinion of Advocate
General Ře, paragraph 47, footnote 13. He says that the criterion of proportionality stricto
sensu is included in the requirement that the derogation must not be detrimental to the
maintenance of the populations of the species at a favourable conservation status. Whether
or not one regards that requirement as reflecting proportionality stricto sensu, the task for
the court is not to determine whether the derogation achieves a fair balance between the
17
competing interests. It is to determine whether the first respondent has addressed in a
lawful manner the question as to whether a derogation will or will not be detrimental in that
way.
[44]
There could be a situation in which there was no satisfactory measure which was not
a derogation, and there was more than one derogation which satisfied the criterion of not
being detrimental to the maintenance of the population of the species at a favourable
conservation in its natural range. Senior counsel for the first respondent initially submitted
that in relation to those options the discretion of the first respondent was unlimited. She
correctly accepted in the course of discussion that the choice would have to be rational, and
made with a view to furthering the purpose of the Habitats Directive.
[45]
A number of the first respondent's documents reflect the notion that they in practice
may choose one form of derogation over another in that way. Both the March and
September 2019 versions of Managing the impacts of beavers in Scotland Guidance for land
property and infrastructure managers amended September 2019 refer to "actions that would either
not require a licence or have less impact on beavers", and "those actions with the lowest
impact on beavers that solve the problem must be considered first" (emphases added).
What the petitioner refers to as "the PAL Policy" and the first respondent refers to as
internal guidance, entitled Beaver Licence Assessments Prime Agricultural Land, contains the
following passage:
"Where we consider that there is no satisfactory alternative to address damage other
than to issue a licence, we must then consider what the appropriate nature is of the
licensed intervention. In other words what licensed activity is most appropriate to
be able to satisfy the need for which the licence is granted and with the least impact
in terms of the overall aims of the Directive. The potential approaches are presented
hierarchically in Table 1 below in relation to impact together with a consideration of
the likelihood of the approach addressing serious damage on [PAL]".
18
The petitioner's case is not that the first respondent has exercised unlawfully a discretion to
choose between different derogations. The petitioner's argument is that the first respondent
has construed and applied the expression "satisfactory alternative" wrongly, and I reject
that contention for the reasons already given.
[46]
The provisions permitting derogation require to be interpreted strictly, and the
burden of proving that the conditions for derogation are met fall on the authority which
authorises the derogation: see, eg Case C-342/05 Commission v Finland, paragraph 25; Case
C-557/15 Commission v Malta, paragraph 47; Case C-217/19 Commission v Finland,
paragraph 66.
[47]
The evidence that the conditions for derogation have been satisfied must be based on
well-established scientific knowledge: C-217/19 Commission v Finland paragraph 70, and
authorities cited there.
[48]
It is for the first respondent to support, on the basis of rigorous scientific data, the
proposition that derogation is capable of achieving the particular purpose being relied on:
Tapiola, paragraph 45. It is not necessary for serious damage to be sustained before
derogating measures can be adopted: Case C-342/05 Commission v Finland, paragraph 40.
The first respondent must establish, taking account in particular of the best relevant
scientific and technical evidence and in the light of the circumstances of the specific situation
in question, that there is no satisfactory alternative that can achieve the objective pursued, in
compliance with the prohibitions laid down in the Directive: Tapiola, paragraph 51.
[49]
According to the Advocate General's opinion in Tapiola the precautionary principle
means that where in the light of the best scientific knowledge in the field there is reasonable
or significant doubt that a human activity will not have adverse effects on the conservation
of habitats and protected species, that activity cannot be authorised. He uses the word
19
"reasonable" at paragraph 63 of his opinion, and "significant" at paragraph 92. What the
court said was this (para 66):
"... if after examining the best scientific data available, significant doubt remains as
to whether or not a derogation will be detrimental to the maintenance or restoration
of populations of an endangered species at a favourable conservation status, the
Member State must refrain from granting or implementing that derogation."
See also Case C-217/19 Commission v Finland, paragraph 84.
[50]
On the petitioner's own analysis, by reference to Scotch Whisky, paragraph 56, the
task for the court, looking at the material relied by the first respondent, is to examine
objectively whether it may reasonably be concluded
(a)
that the derogation is capable of achieving the purpose in question
(b)
that there is no satisfactory alternative; and
(c)
that the measure will not be detrimental to the maintenance of the species at a
favourable conservation status within its natural range.
[51]
Assuming that the first respondent has posed those questions to itself as it ought, the
question for the court is whether the material reasonably permitted the conclusions it
reached. In this context there is an additional requirement that the material be the best
scientific knowledge available. The material must permit the first respondent, reasonably, to
be satisfied to a high level of confidence.
Natural range
[52]
There was a dispute between the first respondent and the petitioner as to whether
the first respondent had taken the correct approach to the expression "natural range" when
considering the conservation status of the species. The range the first respondent considered
was Tayside, referred to in some of the documents as the Tayside catchment or river Tay
20
catchment. This included tributaries of the Tay, including rivers Almond, Earn, Isla and
Tummel. The tributaries are sometimes referred to as sub-catchments. The petitioner
submitted that the natural range of the species should at its narrowest encompass the whole
of a member state, and might in some cases require to be considered across national
boundaries: Tapiola, paragraph 61.
[53]
This was of significance in the context of the petitioner's emphasis on the need to
consider trapping and translocation in every case. The first respondent submitted that
trapping and translocation would have the same effect in the natural range as lethal control:
the individual or individuals would be removed from it. The petitioner submitted that the
translocation of beavers from Tayside had the potential to enhance populations elsewhere in
the UK, although it would diminish genetic diversity in the Tayside catchment. On this
analysis the destruction of any beaver in the United Kingdom is detrimental to the
conservation status of the species within its natural range, because it removes an element of
genetic diversity; if the beavers were translocated, the genetic diversity in the species, across
the UK, would not be diminished. This analysis renders derogation in the form of lethal
control virtually unworkable. That is not the intention of the Directive. The definition of
favourable conservation status is set out elsewhere. While issues of genetic diversity, and
how those will affect the population in the longer term, are clearly relevant issues, they are
not the only issues to be taken into account in assessing and predicting conservation status.
[54]
The discussion in Tapiola at paragraphs 59-61 arose because the member state
maintained that it could rely on the circumstance that the natural range of the species
extended outside its borders. The court emphasised that the effects of derogation were
generally felt in the local area to which it related, and that the conservation status of a
population at national or biogeographical level depended on the cumulative impact of
21
derogations affecting local areas. It was not saying that the natural range of a species should
be regarded in every case as extending to the territory of the whole member state. That
would be at odds with the meaning of "natural range" agreed by the Habitats Committee,
and set out in the Commission Guidance at paragraph 19. That includes the following:
"The natural range describes roughly the spatial limits within which the habitat or
species occurs. It is not identical to the precise localities (the area actually occupied)
or territory where a habitat, species or sub-species permanently occurs. Such actual
localities or territories might be patchy or disjointed for many habitats and species
(i.e. habitats and species might not be evenly spread) within their natural range. If
the reason for disjunction proves to be natural, i.e. caused by ecological factors, the
isolated localities should not be interpreted as a continuous natural range. For
example, for an alpine species the range may be the Alps and the Pyrenees, but not
the lowlands between them. However, the natural range includes areas that are not
permanently used: for example for migratory species, their `range' includes all the
areas of land or water that a migratory species inhabits, stays in temporarily, crosses
or overflies at any time during its normal migration.
A natural range as defined here is not static but dynamic: it can decrease and expand.
A natural range can constitute one aspect for the assessment of (un)favourable
conditions for a habitat or species. If the natural range is insufficient in size to allow
for the long-term existence of that habitat or species, Member States are asked to
define a reference value for a range that would allow for favourable conditions and
work towards this, for instance by fostering expansion of the current range."
[55]
The determination of the natural range of a species involves matters of fact. The first
respondent did not require to treat the whole of the UK as the natural range of the
population. It may be that it should have been treated as extending beyond the Tayside
catchment as defined above, given the information available to the first respondent that the
range of the "Tayside" population had extended to territories in the Forth catchment.
Nothing turns on that for present purposes, and the point did not arise in the course of the
hearing.
[56]
In any event, as I have already indicated, the regulations and the Directive do not
require the first respondent to compare different derogations. I am also satisfied, for the
22
reasons given below, that the material available to the first respondent entitled them to
conclude that translocation would be an appropriate measure only in very clearly defined
circumstances.
The first respondent's approach to licensing and PAL, and translocation
Policy and internal guidance
[57]
The first document of potential significance is Managing the impacts of beavers in
Scotland Guidance for land property and infrastructure managers as it stood in March 2019. It
was later revised, in September 2019. It was intended to summarise the policy of the first
respondent.
[58]
The March version contained the following.
"Test 1 Licence purpose
We issue licences for purposes set out in the legislation: these include for preventing
serious damage to certain interests such as crop, timber or fisheries, for public health and
safety reasons or other important social, economic or environmental purpose which are
in the public interest and for conserving natural habitats or wild animals.
This means that there has to be a legitimate problem that needs addressing. To help
us consider if this test is passed we may rely on information we already have, your
own information and/or the information gathered by the expert adviser from a site
visit.
In certain situations which may be particularly vulnerable (eg dam building affecting
areas or prime agricultural land or sensitive in-stream infrastructure, flooding public
transport infrastructure, damage to protected features on Natura sites or burrowing
into flood embankments) we consider that this test is likely to be met. Prime
agricultural land means land classes 1, 2 and 3.1.
Test 2 Alternatives
We issue licences as a last resort. This means we have to be assured that other
possible actions that would either not require a licence or have less impact on
beavers, have either been tried or are not likely to resolve the problem. Again we
will rely on information from the affected person, the expert adviser and previous
experience to help us judge whether this test is passed.
23
We accept that there will be situations where it can automatically be assumed that
there is no satisfactory alternative other than to issue a licence for lethal control.
These situations include where there is serious damage (or the risk of it) to prime
agricultural land, and where we know alternative mitigation measures either have
not or will not address the problem.
Test 3 Conservation impact
We have to ensure that licensed actions do not harm the conservation status of
beavers in Scotland and so will not affect population trends or the overall range of
beavers. In the first instance we would follow the principles above in that those
actions with the lowest impact on beavers that solve the problem must be considered
first. Where we licence lethal control of beavers we will monitor the cumulative
impact of this management.
Given the evidence from recent survey information that beavers continue to expand
their range even with ongoing lethal control in places, we are confident that the
actions we licence will not be detrimental to the conservation status of beavers and
so this test is likely to be met. We will maintain an oversight of the cumulative
impacts of what we licence and the population dynamics and range of the Scottish
wild beaver population to ensure this is the case."
[59]
It included also the statements "... where beavers are affecting or likely to affect
areas of prime agricultural land we offer a streamlined approach to licensing" and "We
accept that if beaver activity is affecting areas of ... (PAL) then the three licensing tests are
met and that a licence can be issued ..."
[60]
In the September version the passage headed "Test 1" was unchanged. The second
paragraph under the heading "Test 2" read:
"We accept that there will be situations where there is no satisfactory alternative
other than to issue a licence for lethal control. These situations include where there is
serious damage (or the risk of it) to prime agricultural land, and where we know
alternative mitigation measures either have not or will not address the problem."
The words "it can automatically be assumed that" had been deleted. The two phrases to
which I refer in the preceding paragraph no longer appear. The second one has been
replaced with this:
24
"Where beaver activity damages agricultural interests on areas of PAL, and
alternative actions would not be effective, then the three licensing tests will have
been met."
[61]
The terms of the March document 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. The first respondent does
not suggest that there is.
[62]
The petitioner has also produced an undated "Licensing Officer Aide Memoire"
which includes the following:
"- What type of problems are they experiencing
-
Is it just dam control needed or is lethal control being sought for
-
Have preventative measures already been tried, if so with what level of
success
...
PAL: If yes then can automatically licence, if no then we can organise a visit "
[63]
To approach matters that a licence can be granted automatically for PAL is wrong as
a matter of law. A number of licences were issued between May and September 2019. The
first respondent maintains that notwithstanding the terms of the March document, it did
apply the regulations correctly.
[64]
The PAL Assessment is a lengthy document from which, in the interests of brevity, I
will not quote all the potentially relevant passages in full. It includes consideration of the
effects of dam building, burrowing and feeding. It contains discussion of the use of buffer
zones. Those are zones created or maintained to support beavers and create riparian
habitats a minimum of 10 to 20 metres and up to 50 metres or more from watercourses
where beavers are present. The document notes that they involve the permanent change of
25
agricultural land into non-agricultural land. So far as licensable purpose is concerned, the
purpose to which this document refers is the one in regulation 44(2)(g). The question the
first respondent is addressing at this stage is whether a derogation is capable of meeting the
purpose in question. After referring to various studies, and to site visit reports from an
expert adviser over five years, the experience of the first respondent's staff and the farming
community, the passage under the heading "Test 1 Licensable purpose" concludes:
"The relatively generic physical nature of PAL (in terms of soil structure/type,
topography and drainage requirements) and our experience of this means that we
are confident that the risk of serious damage is likely to apply across most areas of
PAL. However, where discussions with landowners/managers, site-visits or from
other information available (eg from our Geographic Information Systems, GIS)
highlight potential exceptions to this assumption [the first respondent] will
investigate on a case-by-case basis to inform assessment of licensing tests, including
potential alternative approaches. This will be particularly pertinent in new areas of
PAL colonised by beavers.
We therefore consider that Test 1 is likely to be passed where beavers are present on
PAL but will check each case to ensure that these assumptions can be met."
[65]
The next section of The PAL Assessment is headed "Test 2 No Satisfactory
Alternative". As I have already indicated, when considering whether there is a satisfactory
alternative, the first respondent must ask itself whether there is a satisfactory alternative
which is not a derogation. That approach is reflected in the first sentence of this section:
"A satisfactory alternative is an action that would provide a solution to the identified
need without having to resort to a derogation. In other words in this case an
approach that would prevent serious damage to [PAL] without a licence being
necessary."
The document then goes on to deal with measures to deal with the impacts of damming and
burrowing, in the following terms:
"There are a range of measures that could potentially reduce or prevent impacts of
beavers on agricultural (and other) interests. These measures are largely focussed on
managing the two key behavioural activities that can give rise to damage; damming
26
and burrowing. Some of these measures are likely to require a licence and some are
not. These alternatives are summarised below and are covered in more detail in the
Annex to this paper, as is their potential applicability to situations on Prime
Agricultural Land.
Potential methods of managing the impacts of damming that would not require a
licence
There are a range of techniques associated with managing the impacts of damming.
These include manipulation of dams, removal of dams, preventing dams being built,
excluding beavers from areas where they might build dams, trapping and
translocation and lethal control. We consider that all of these approaches may
require a licence. Given this we consider that in order to address serious damage
caused by damming activities by beavers on Prime Agricultural Land, there is likely
to be no satisfactory alternative than to licence actions necessary to resolve that need.
We acknowledge that possible exceptions to this assumption may occur in certain
circumstances and this will be assessed on a case-by-case basis.
Potential means of managing the impacts of burrowing that would not require a
licence
There are a range of techniques associated with managing the impacts of burrowing.
Green bank engineering and re-alignment of flood-banks are two measures which
could potentially be used and which would not require a licence.
Realignment of flood-banks, whilst potentially reducing the risk of burrowing
weakening their integrity, is unlikely to resolve issues of erosion of land as a result of
burrowing and furthermore would be likely to result in the loss of productive land as
a result of moving the flood-bank structure away from the river bank. Therefore we
do not consider that this would likely resolve the need for which a licence may be
required. Furthermore, the scale and commercial cost of such action is likely to be
extremely high. As such we do not consider that this is likely to constitute a
satisfactory alternative.
Green-bank engineering approaches have not been well-trialled but may present
potential solutions to minimise damage arising from burrowing in the future. Due to
their nature they may take time to become established and to be able to gauge their
effectiveness. As such we do not consider at this time that our current knowledge of
these approaches means that they are a satisfactory alternative to address the need in
question.
Therefore we consider that it is most appropriate to trial a range of techniques in this
respect and monitor effectiveness before considering them as a satisfactory
alternative. As we learn from these trials we should be able to develop our
understanding of whether or not they are satisfactory in different situations. We will
27
therefore investigate and implement trials of these techniques, possibly in
combination with other schemes.
Given the above we consider that in order to address serious damage caused by
burrowing activities by beavers on Prime Agricultural Land, there is likely to be no
satisfactory alternative than to licence actions necessary to resolve that need. We
acknowledge that possible exceptions to this assumption may occur in certain
circumstances and this will be assessed on a case-by-case basis."
[66]
The document goes on to deal with the conservation implications of licensing on
PAL. Under the heading "What is favourable conservation status", the first respondent,
correctly, directs itself to the definition in Article 1(i) of the Habitats Directive, and quotes
that. The document then reads:
"For most other species of EPS there are reference values against which any
assessment of conservation status is made. These are often based upon the data
available when the Directive came into force in Scotland in 1994 but because beavers
were not present at that time then no such value exists. Therefore we need to
consider a more pragmatic approach to assessing and monitoring conservation status
in Scotland."
The conservation status of beavers in Scotland
The three "components" for consideration of conservation status are considered
below against the information currently available for beavers in Scotland;
-
Population dynamics: in Tayside the survey data indicates that the
population size, density and distribution increased substantially between the 2012
and 2018 surveys. In Knapdale the population has not increased (although this was
not the aim of the Scottish Beaver trial). Current and on-going translocation work
will continue with the aim of supplementing the existing population there.
-
Range: the recent surveys have shown that the Tayside population has
continued to expand in range and has spread beyond the wider Tay catchment. In
Knapdale the range of the population has not changed significantly.
-
Availability of suitable habitat: Available habitat for beaver from Beavers in
Scotland indicates sufficient habitat availability both now and in the foreseeable
future.
28
In summary, we have recent, good quality survey information which concludes that
the Tayside area population is increasing and its range expanding here. The small,
remnant trial population at Knapdale also contributes to the number and range of
animals living wild in Scotland. Given the above we consider it appropriate to
conclude that the conservation status of beavers in Scotland is improving."
[67]
The document goes on to record that despite unregulated lethal control, the number
of territories in PAL increased substantially between 2012 and 2017/8. The range of the
"Tayside" population had expanded into territories in the Forth catchment. There was no
reason to believe that the levels of control under licence would be higher than that
undertaken before the beaver became protected. The first respondent would monitor the
position. It was not anticipated that there would be a significant requirement for lethal
control outside areas of PAL. Half of the beaver population occurred outside PAL, and with
protection, that should facilitate further expansion of the population to the north, west and
south. There was no reason to think that the increasing trend in range would not continue.
Although some conclusions are expressed in terms of likelihood and probability, they are
summarised as follows:
"We consider that the proposed approach to licensing on Prime Agricultural Land
will not be detrimental to the improving trend of the conservation status of beavers
in Scotland. We accept that in these areas beaver densities may be lower than
elsewhere and sometimes locally absent. However, as the beaver population more
widely continues to expand, the relative influence of control of animals on the
limited area of land that is classified as PAL will be reduced."
[68]
There are several documents recording the first respondent's approach to
translocation. The following passage from Managing the Impact of Beavers in Scotland is an
accurate summary of it:
"Translocation (ie trap and relocation) of beavers that are causing impacts to other
interests is possible. However, whilst it may initially be seen as an attractive
alternative to lethal control there are also risks with this as an approach.
Translocation can have significant welfare implications associated with capture,
29
transport and following release. It can also be a time consuming and costly process
and has to be carefully planned. Translocation is only likely to be a viable option if
either a suitable unoccupied site is available nearby or if it is undertaken as part of a
recognised reintroduction or reinforcement project."
[69]
The Translocation of Beavers in Scotland, is a published policy of the first respondent. It
records that there was a presumption against translocations within Scotland beyond the
current range of the species in Knapdale and in Tayside, including contiguous areas into
which the population had naturally expanded. It sets out a series of potential risks and
limitations, namely the limited availability of suitable release sites in the longer term, the
risk of recolonization of the capture site, potential adverse impact on animal welfare, and
practicalities including cost and effort. Each of these is described in more detail in the
document.
The material relied on by the first respondents as supporting their policies and guidance
relating to licensing on PAL and translocation
[70]
The PAL Assessment refers to a number of other documents, all produced in 2015,
including report of the Tayside Beaver Study Work Group ("TBSG Report"), and Managing
wild Eurasian beavers: a review of European management practices with consideration for Scottish
application ("SNH Commissioned Report No 812"), and Beavers in Scotland: A Report to the
Scottish Government ("Beavers in Scotland"). Each of these is a substantial document. There
are passages duplicated among these documents. In particular Beavers in Scotland contains
references to the other documents produced in 2015.
[71]
Beavers in Scotland is a report by the first respondent. It was intended to inform the
decision as to the future of beavers in Scotland. It is 204 pages long. The references or
endnotes themselves extend to several pages. At pages 13-17 it lists a number of reviews
30
and studies which the first respondent commissioned before seeking permission for the trial
reintroduction of beavers in Knapdale, and further studies which the first respondent
organised thereafter. They include a review of the European experience in applying
derogations for protected reintroduced species, including beavers.
[72]
Chapter 3 contains material about population expansion and population modelling.
Pages 36-37 relate to population growth and range expansion in the context of the Scottish
populations, with and without reinforcement. The authors predicted a population of 771
beavers in 160 families in the Tay and Earn catchments by 2042, assuming no human
interference. Chapter 3.3 relates to beaver genetics, and recognises the importance of
maintaining genetic diversity. The genetic diversity within populations of the Eurasian
beaver generally was low, reflecting previous hunting to near-extinction: page 37. The
report considers the interaction of beavers with the habitat and other species, and also the
interaction of beavers with various human activities, including fishing, forestry and
agriculture. Chapter 4.4 relates to agriculture. It records, amongst other things, the risk of
flooding to agricultural land posed from burrowing into the banks of watercourses and the
building of dams. It refers to and summarises the findings of the Tayside Beaver Study
Group in relation to negative impacts, the majority of which were recorded in intensively
farmed lowland areas at sites directly adjacent to watercourses. At page 136 the report
includes the following:
"The use of techniques such as notch weirs or flow devices is not usually effective in
these situations, and the removal of dams is usually followed by rapid reconstruction
if the beavers remain".
That theme is expanded upon in Chapter 5, which deals with "legal issues and the
management of beavers and their impacts". It includes consideration of beaver
31
management techniques employed in Europe and North America. The following passage
appears in that chapter:
"The management techniques described in the preceding sub-sections all focus on
the management or mitigation of beaver impacts. This section considers
management of the animals themselves.
The perceived need for, and methods of, regulating beaver populations vary greatly
across Europe, from hunting quotas in Norway (frequently unlimited because the
demand for hunting is below the rate of natural increase in many river systems) to
removal by employed or trained volunteer beaver managers in Germany. In
countries where beaver populations are still recovering they are usually fully
protected and mitigation and non-lethal management methods prevail.
In cases where beaver conflicts cannot be suitably managed, because costs are too
high or the potential impacts too great, the removal of their presence through
trapping and translocation, or culling, may be the only practical solution."
[73]
It refers to the Scottish Beaver Trial, described as "the central beaver-related project",
which involved monitoring the population in Knapdale over five years in order to:
"
Study the ecology and biology of the Eurasian beaver in the Scottish
environment
Assess the effects of beaver activities on the natural and socio-economic
environments
Generate information during the proposed trial release that will inform a
potential further release of beavers at other sites with different habitat characteristics
Determine the extent and impact of any increased tourism generated through
the presence of beavers
Explore the environmental education opportunities that may arise from the
trial itself and the scope for a wider programme should the trial be successful"
The first respondent carried out that trial in conjunction with various academic institutions
and other public authorities: page 14.
[74]
Beavers in Scotland refers also to the TBSG report. The Tayside study group was
established in 2012 following a decision by the Minister for Environment and Climate
Change to tolerate the unlicensed beaver population on Tayside (specifically the Tay and
Earn catchments). The group aimed to gather information about the Tayside beavers and
32
monitor impacts on local wildlife and land uses in the area; and to help identify a variety of
means to resolve any conflicts between beavers and land uses in the area, provide advice
and practical help to land owners locally, and to consider how those means could be used
more widely in the future. The activities of the group included gathering information on the
health and genetic status of the population; understanding breeding success to aid
population modelling; recording impacts on land use and investigating and trialling
methods to minimise negative impacts. The TBSG report relates that priority was given to
documenting land use issues and conflicts (paragraph 1.1). It involved site visits across
Tayside: paragraph 8.2.
[75]
Among the findings was one that many of the beavers in the Tayside catchment were
closely related, and that the degree of inbreeding in the future could become a concern.
Forestry and woodland was the most commonly impacted interest, with agriculture having
the second highest incidence of impact. The issues cited included damming in drainage
ditches and consequential impacts on field drainage; erosion of land due to burrowing, and
diverted water flows around dams; flood bank damage due to burrowing, and three cases of
crop foraging. The first respondent issued questionnaires to landowners, and the report
discusses the responses to that questionnaire. Agriculture was recorded as the interest with
the second highest incidence of impact; from damming and burrowing, and also crop
foraging.
[76]
Paragraph 9.2 relates the findings of beaver impact case studies. One of these looked
at the impact of damming, including the effect on drainage, on a farm of 445 hectares of
lowland arable land. The landowner regularly removed dams, but monitoring revealed that
they were rebuilt very swiftly: paragraph 9.2.1. Paragraph 9.2.2 records the findings of a
33
case study into the effects of burrowing in flood defence banks, on a farm of lowland arable
land adjacent to the River Isla.
[77]
Chapter 10 relates to mitigations, and records, like other passages in the report, some
lack of enthusiasm on the part of landowners so far as mitigations were concerned. There
was a reluctance to have in place those which might encourage beavers to remain, and a
perception that mitigations would be ineffective. The report contains the outcome of trials
of mitigations. Some of these relate to the protection of trees, where some mitigations
appear to have been quite effective: paragraphs 10.1.1-2; 11.4.4. Regarding flow control
devices, the report records:
"In the right circumstances, particularly where damming occurs at a natural pinch
point in the system (such as the outflow of a pond), a correctly installed flow control
device can be extremely effective. They work at sites where a degree of rise in water
level behind the dam is tolerable. ....
Straight narrow water courses such as drainage channels do not provide suitable
situations for a flow control device as it's likely beavers will attempt to dam at other
points in the system because there is no natural pinch point. It is also unlikely that a
rise of water level would be acceptable in principle."
[78]
Paragraph 11.4.2 is headed "Impacts on intensive agricultural land", and reads:
"The most serious concerns were reported within the areas of highest importance for
agricultural production. This was especially so within the intensively cultivated
arable ground on the flood plain of the lower River Isla and its confluence with the
River Tay. This land is subject to extensive networks of drainage ditches and
associated field drains, and much is protected from river flooding by flood banks.
The concerns and impacts reported by land managers were associated with the
construction of beaver dams and burrows.
The shallow gradients on these flood plain areas results in a very low tolerance
threshold for any rise in water levels before the field drain network ceases to
function. If beaver dams were left in situ within the drainage ditches, the resultant
waterlogging and flooding could prevent cultivation of productive land. The only
mitigation option available in this situation was dam removal. It was, however, a
frequent experience at some sites that removed dams were quickly replaced by
beavers. The fears over the consequences of impeded drainage, led to a significant
increase in the monitoring frequency of ditches. This together with repeated removal
34
of any dams, resulted in additional costs in terms of time and the associated use of
any equipment.
Also of great concern was the potential risk posed by burrowing activity to the
integrity of earthen flood banks. Many of these banks lie within 10 metres of the
river bank, and could be impacted by burrowing activity. While breaches of these
flood defences have occurred before beavers were present, the example documented
by TBSG in the case study was a major event and is an example of a breach resulting
from beaver burrowing activity.
No trial of potential mitigation/prevention options was offered by TBSG in response
to burrowing, as the cost to protect an adequate length of bank would have been
beyond the resources available. For similar reasons, no land manager was willing to
undertake a trial at their own expense."
[79]
At paragraph 3.1.2 of Managing wild Eurasian beavers: a review of European management
practices with consideration for Scottish application (Scottish Natural Heritage Commissioned Report
No 812) the authors record that the most significant impact of beavers on agriculture is the
damming of drainage ditches and/or nearby water bodies so that the backup of water
directly floods agricultural land. The increased ground water levels can impede drainage
and cause water logging of crops. So far as flow devices are concerned, the authors write, at
page 10:
"The installation of flow devices can be a very effective, relatively low cost, method
for resolving beaver damming conflicts in comparison to regular road maintenance,
dam or beaver removal programs (Boyles & Savitzky, 2009). Failure rates can be
significant, and tend to occur in the first 2-12 months if they are installed by
inexperienced personnel, placed at inappropriate sites or are incorrectly designed
(Czech & Lisle, 2003; Callahan, 2003; Lisle 2003). One study recorded a flow device
success rate of 87% at 156 beaver conflict sites in North America, with most failures
resulting from insufficient pipe capacity, lack of maintenance and damming of the
fencing associated with the flow device (Callahan, 2005). The construction of new
dams downstream by the beavers was also considered a `failure' in this study,
though it should be noted beavers may have multiple dams with a territory and
build tiered dam systems depending on habitat type. Insufficient pipe capacity can
be rectified through replacing with a more appropriate pipe. Higher success rates
have been demonstrated by other experienced practitioners, it should be noted that
skill and knowledge will significantly influence flow device success."
35
The authors noted, also at page 10, that removing dams may stimulate rebuilding, and opine
that it may be more effective to allow a dam to remain and to manage its size and the extent
of resultant backwater.
[80]
Paragraph 3.4 contains a passage in identical terms to that already quoted from
Chapter 5 of Beavers in Scotland. So far as trapping and translocation, and lethal control, are
concerned, the following passages appear at pages 18 to 21.
"Trapping and translocation any trapping effort to remove beavers from an area
should seek to ensure no dependent offspring remain. Juvenile beavers for at least
their first year of life are reliant on their parents and older siblings for shelter,
protection and food provision. They also rely on the communal body warmth of
larger individuals in winter. The trapping and relocation of heavily pregnant or
lactating females should be avoided. Any trapping programme must recognise that
a repetitive process of trapping and monitoring (pre- and post), will be required to
completely remove beavers from an area. Beavers commonly display varying levels
of bait and trap shyness, with sub-adults tending to be more easily trapped than
adults, and males tending to be more easily trapped than females (Schulte & Müller-
Schwarze, 1999; Müller-Schwarze, 2003).
As beavers are a highly territorial species, fighting can inflict serious wounds and
even death, so care must be taken to ensure that any translocated individuals are not
released directly into the territories of non-related animals. Beavers from different
family units should never be mixed in the same transport crate. Ideally pairs or
family groups should be released together in available habitat. Any translocation
should follow best practice guidelines including IUCN (2013) and Best Practice
Guidelines for Conservation Translocations in Scotland (National Species
Reintroduction Forum, 2014).
...
The trapping and translocation of `problem' individuals is a viable but ultimately
limited management tool.
...
Based on the current evidence from free living beavers in Britain, any populations
which are not eliminated swiftly are likely to establish and expand. As Eurasian
beavers are now largely recovered across throughout most of Europe and there is no
credible prospect of translocating beavers from Britain as a means of ameliorating
local beaver conflicts. If internal translocation is not possible or becomes exhausted
within mainland Britain, then management through culling when irresolvable
conflicts arise will be the only practicable option over time.
...
Translocation under appropriate licencing, translocation could provide a relatively
cost effective source of beavers for re-colonisation projects, if the health and genetic
status are considered favourable. Additionally translocation could be a practical
36
management tool to relocate `problem' animals. Potential relocation sites should be
identified in advance, with landowner permission secured. Trapping protocols and
equipment should be standardised, through an authorising body, to ensure
consistency and appropriate animal welfare standards.
Humane dispatch - successful beaver management will eventually require humane
lethal control initially through the identification of problem animals; or the removal
of beavers to prevent colonising of predetermined `beaver free zones', or to achieve
annual culling quotas (realistically not a perceived management requirement for a
number of decades, once beaver populations are widely established). If beavers are
to be dispatched by shooting, then certain factors should be considered to ensure
dispatch is humane. Currently beavers can be shot without a licence in Britain,
provided landowner permission is granted, firearm and animal welfare laws are
complied with."
[81]
The first respondent also commissioned a report in relation to the genetic assessment
of the Tayside beavers: Genetic assessment of free-living beavers in and around the River Tay
catchment, east Scotland (SNH Natural Heritage Commissioned Report No 682) (2015). All the
samples collected were found to originate from a source population in Germany, most likely
Bavaria. Three genetic lineages were evident from the data. The Knapdale beavers
originally came from a population in Norway. The authors of the study say, at section 6 of
the report:
"The measures of genetic diversity in the River Tay "population" are consistent with
healthy beaver populations across the Eurasian range. Although the current
population centred on the River Tay catchment is estimated to consist of ~ 38 active
groups (Campbell et al, 2012), it is suspected that this `population' was established
by a limited number of founders, and so genetic diversity could be compromised as a
result of limited founding diversity and subsequent genetic drift. However, the
founding population's source (Germany) has the highest recorded genetic diversity
so far measured, a likely consequence of an admixed descent, and therefore genetic
diversity in the River Tay catchment beaver `population' is consistent with the
highest levels of genetic diversity in populations across Eurasia."
[82]
In 2019 the first respondent published Survey of the Tayside area beaver population
2017-2018 (SNH Commissioned Report No 1013). The authors summarised their main findings
as follows:
37
"Beavers are spreading in distribution and are present outside the catchments of the
Tay and Earn. Small numbers of territories occur within the Forth catchment from
Loch Achray in the Trossachs, parts of the Teith and Devon, and the main stem of the
Forth near Stirling.
No evidence of beaver presence was found on the South Esk nor in several
freshwater bodies associated with the lower Forth and Forth estuary, including Loch
Leven.
Distribution in Tayside ranged from as far north as Dunalastair Water, extending out
to the River Dochart and River Lyon in the west, over to Forfar Loch in the east and
down to Loch Earn in the south.
114 active beaver territorial zones were identified in this study, giving a
conservatively estimated number of approximately 433 beavers (range 319 547).
This number is based on a previously reported European mean group sizes of 3.8±1.0
animals per territory, which was also used in the 2012 SNH survey. Some identified
zones may constitute multiple families and additional active territories, along with
dispersing singletons, are likely to exist both within Tayside, especially on minor
watercourses, and outside of the Tayside catchment which it was not feasible to
cover during this survey.
Out of the 114 beaver territories defined using the 2017/2018 survey data, 100% were
contained within the areas identified as `Potential Beaver Woodland' and 95% were
contained within the `Potential Core Beaver Woodland', as defined by previous SNH
GIS mapping exercises (Stringer et al. 2015).
Potential management issues were recorded at a total of 159 points, across
21 territories, ranging from dam building, collapsed burrows, tree felling, crop
feeding and damage to fence lines.
A total of 86 dams, or sites where dams had been removed, were recorded. Of these,
41 dams occurred within one private estate.
There was an increase in both beaver distribution and density compared to the 2012
survey although spatial variability was evident, with areas of expansion and
infilling, along with smaller areas of habitat abandonment potentially through
culling."
They noted (paragraph 2.1.1) that they might have underestimated beaver numbers and the
figures were conservative (paragraph 4.1). The report contains an explanation of their
methodology. There had been a large increase in beaver activities across the Tayside and
adjacent catchments, from a minimum of 38 to 114 territories, between 2012 and 2017/8
38
(paragraph 3.3.1). It was not possible to determine what impact unregulated culling had
had on population growth, as the reports of it were unvalidated, and estimated numbers
culled varied widely: paragraph 4.5. That also made it difficult to predict the effects of
regulated culling. Annual population growth rates had been recorded between 5 and 34% in
various studies.
[83]
The petitioner produced an article, Beaver Genetic Surveillance in Britain, Global
Ecology and Conservation 24 (2020) by M Gaywood and ors. This was a study of the
genetics of the Tayside beavers and also a population in the River Otter in Devon. Both
populations were displaying evidence of growth and increased distribution. Like the
Tayside beavers, the Devon beavers are of German origin. The authors concluded that
individuals in both populations were closely related, though the Devon beavers were
significantly more related. This might have important repercussions for the long-term
viability of populations founded only from this stock. There was no evidence in the form of
body condition or pathology that the beavers were failing to adapt to the British
environment or experiencing compromised welfare. The Tayside beavers could provide a
reasonable source of founding individuals for any future reintroduction of the species,
though the authors recommended genetic management to encourage diversity. They
recommended caution about sourcing from the current Devon population. If the decision
was made to reinforce or reintroduce beavers to other parts of Scotland or Britain, then the
suitability of Tayside Beavers from a purely genetic stance would need to be carefully
managed. Repeatedly moving small groups of animals from one part of Britain (without
further enriching of genetic material) to seed new releases in another might reduce genetic
diversity in the source population, likely resulting in sub-optimal genetic diversity in the
founder populations. That would not generate additional genetic diversity in Britain, and
39
might lead to localised inbreeding. Decisions on beaver management had to take into
account many complex biological and socio-economic considerations. Increasing the use of
translocation in the future would better enable the preservation of genetic diversity which
might be otherwise lost through lethal control.
Policies and guidance about licensing on PAL and translocation: decision
Was the first respondent to take the PAL Assessment into account?
[84]
The first respondent says that it is entitled to take the approach described in the PAL
Assessment. The first respondent accepts that it must, and contends that it does, consider the
circumstances relative to each licence individually.
[85]
Among the conclusions expressed in the PAL Assessment are that what it describes as
the first two licensing tests are likely to be met in respect of beaver activity on or near PAL.
If the first respondent determined to grant licences simply because it was likely that the
conditions for derogation were met, that would be an error of law.
[86]
The PAL Assessment does not indicate that the first respondent does or should grant
licenses on the basis that it is satisfied that the first two tests are likely to be met. The
assessments that the first two conditions for derogation are likely to be met are conclusions
that inform an eventual decision as to whether or not to grant a licence. So is the conclusion
that the proposed approach to licensing on PAL would not be detrimental to the improving
trend of the conservation status of beavers in Scotland. If those conclusions are ones that the
first respondent was entitled to reach, and the first respondent goes on to examine the merits
of each application, there is nothing unlawful in that approach. If there are conclusions that
can legitimately be drawn as to what are likely to be the effects of beaver activity in a
particular context, then there is no reason why those conclusions should not be taken into
40
account when there is a licensing application in that context. It is proper for a body of
information drawn from experience, investigation and scientific study to be used in the
assessment of claims by individual landowners that activity is occurring, that it is having
particular effects, and in considering what mitigations will and will not be effective in
particular circumstances.
Was the first respondent entitled to reach the conclusions in the PAL Assessment?
[87]
The material on which the first respondent relied is very lengthy and my reference to
it, both elsewhere in this opinion and here, is necessarily selective. I am satisfied that it was
the best information available to the first respondent, and that it was informed by experience
and scientific study and investigation. The nature and vulnerability of PAL is explained at
paragraph 11.4.2 of the TBSG report. That report contains cases studies of the impacts of
beaver activities on low lying arable land in Tayside, both in relation to damming and
burrowing. It includes advice from the Scottish Environmental Protection Agency about the
risks to flood banks from burrowing. Apart from the case studies, it documents in detail a
number of impacts from burrowing and damming, at paragraph 9.1.1. The reports to which
I have referred above contain a wealth of references to the effects of damming and
burrowing. The information supports the proposition that low lying land next to
watercourses is at risk of flooding caused by damming, and from flood bank breaches and
other forms of damage caused by burrowing. PAL is particularly valuable and productive
land from an agricultural perspective. The information available to the first respondent was
of such a nature that it might reasonably be concluded that the activities of beavers on or
near PAL were likely to give rise to serious damage to crops and other forms of property.
The first respondent was entitled to conclude that it was likely that the grant of a licence
41
would be capable of serving the purpose set out in regulation 44(2)(g) in relation to the
activities of beavers on or near PAL.
[88]
Potential management techniques feature in the material on which the first
respondent relies. A number of management techniques are listed in chapter 5 of Beavers in
Scotland. In relation to each there is information as to its purpose, limitations, the
considerations relative to animal welfare, timing, legal considerations, costs and regulatory
burden. Almost all involve derogations which would require a licence. That material
supports the conclusion expressed in the PAL Assessment that all the potential methods of
dealing with the effects of damming would require a licence. So far as the effects of
burrowing are concerned, the first respondent in the PAL Assessment goes on to consider two
measures to deal with burrowing that would not require licences. The first would itself
result in the loss of agricultural land, and the second was not well-trialled. The first
respondent was entitled to conclude that a measure which was not well-trialled was not
something it should regard, at that time, as a satisfactory alternative to the grant of a licence.
The first respondent was entitled to conclude that there was likely to be no satisfactory
alternative to a licensed activity in relation to managing the effects of damming and
burrowing on or near to PAL.
[89]
So far as the population of beavers is concerned the first respondent in 2015 had
information predicting a growth in the population. That prediction was borne out by the
findings of the 2017-2018 survey. I accept that genetic diversity was one of the factors that
the first respondents had to take into account in assessing conservation status: see eg
Commission Guidance paragraph 16, footnote 17. The first respondent had information that
the genetic diversity of the Tayside population was in line with the highest levels of genetic
diversity in populations across Eurasia. There is nothing in the 2020 article which
42
undermines those conclusions. It is a nuanced piece. Although it indicates that
translocation would preserve genetic diversity that might be lost by lethal control, it
acknowledges that repeated removal of beavers from a location will reduce genetic diversity
in the local population, and could lead to localised inbreeding. It acknowledges that
decisions about beaver management are complex.
[90]
The first respondent, correctly, considered and referred in the PAL Assessment to the
definition of "favourable conservation status" in the Directive. It relied on a recent, detailed,
survey of the Tayside beaver population. In the light of the information that the first
respondent had in 2019 about the growing beaver population, it was entitled to conclude
that the Tayside population would continue to grow in number and range. The information
available was in the form of studies and surveys which themselves refer to earlier academic
work. The first respondent was entitled to find itself satisfied, to a high degree of
confidence, that the beaver population in Tayside was growing, and its conservation status
improving. It did so against a background of population growth despite previously
unregulated culling. The material available to the first respondent supported the reasonable
conclusion that its proposed approach to licensing on PAL would not be detrimental to the
maintenance of the species in its natural range.
[91]
The first respondent was under no obligation to carry out a detailed or individual
reassessment of the population every time it granted a licence. Against a different factual
background it could conceivably be otherwise, perhaps in the case of very low or declining
population, but that is not the situation here. Subject to review on the grounds of
rationality, and the need to be satisfied to a high level of confidence on the basis of good
quality scientific information, the nature and frequency of review of the population levels is
a matter for the first respondent. The first respondent expected to receive the results of a
43
further population survey in the course of 2021, and produced a draft report of that survey.
Its findings are irrelevant to this petition. The fact that it was instructed is in accordance
with the intention expressed in the PAL Assessment to monitor the population once the
licensing regime came into effect.
Managing the impacts of Beavers in Scotland
[92]
The first respondent was entitled to use the conclusions in the PAL Assessment to
inform its decisions in relation to individual licences. The September 2019 version of
Managing the impacts of Beavers in Scotland reflects that position. The March version does not
reflect that position, and if the first respondent took the approach set out in it in reaching its
decisions, it would have erred in law. The first respondent asserts that it did not in fact take
the approach in that document. I have not determined whether it did. No licences granted
before September 2019 remain in force, as licences have a maximum duration of 2 years.
There is no licence granted during the currency of that policy which would fall to be
reduced in this process.
Generalised administrative practices
[93]
The petitioner asserts that the first respondent has generalised administrative
practices which are unlawful. Those are (a) failing to give sufficient and proper reasons for
issuing each individual licence; (b) failing to consider the individual circumstances of a
given application; (c) granting licences for the lethal control of Eurasian beavers in Scotland
without due and proper consideration of the necessity and proportionality of issuing a
licence in each individual case. Points (b) and (c) are different articulations of the same
point. I deal with them together.
44
[94]
The petitioner's primary position was that it was for the first respondent to
demonstrate that all of the challenges to the grant of licences, whatever the legal foundation
for those challenges, were unfounded. The petitioner also submitted that it had produced
evidence to support its contentions.
[95]
An authority requires to justify derogations. It is, however, for the party asserting
the existence of a generalised unlawful practice to substantiate that. That distinction is
observed in the jurisprudence cited by the petitioner. In C-342/05 Commission v Finland, the
court found that the Commission had not adduced sufficient evidence of two specified
administrative practices, while also holding that Finland had not been able to demonstrate
by means of evidence that a measure was capable of achieving its objective.
Failure to give reasons
[96]
The first respondent has a general practice of issuing licences without giving reasons
for doing so. The first respondent admits, in answer 45, 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.
[97]
In approaching matters on the basis that it has no duty to give reasons for granting a
licence, the first respondent has erred in law. In Keir parties agreed that there was no
requirement to give reasons. Doody and Sharp are not in point. I require to determine the
meaning and effect of the 1994 Regulations in accordance with any retained case law and
any retained principles of EU law: EUWA section 6(3).
[98]
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
45
must explain why there is no satisfactory alternative measure which is not a derogation:
Case C-342/05 Commission v Finland, paragraphs 30-31; Case C-557/15 Commission v Malta,
paragraphs 47, 50, 51; Tapiola, paragraphs 49-50; C-217/19 Commission v Finland,
paragraph 66. 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;
Tapiola, paragraphs 49, 50:
"49.
Further, it must be noted that art 16(1) of the Habitats Directive requires
Member States to provide a clear and sufficient statement of reasons as to the
absence of a satisfactory alternative ...
50.
That obligation is not met where the derogation decision does not contain any
reference to the absence of any other satisfactory solution or any reference to relevant
technical, legal and scientific reports to that effect ..."
[99]
The Habitats Directive requires that certain matters be the subject of reporting to the
Commission: Article 16(2) and (3). That is a separate, although related, obligation. The
cases to which I have referred impose a requirement that the derogation decisions
themselves contain reasons. The respondents, particularly 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. 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.
46
There is no requirement to give reasons as to why one form of derogation has been chosen
over another.
[100]
The appropriate remedy is reduction of those licenses which have not already
expired, listed in the schedule for service. Those are at points 39-49 inclusive in part 2.2 of
the schedule.
Failure to consider the individual circumstances of a given application etc
[101]
The petitioner produced call logs and other documents which relate to 21 specified
licences.
[102]
The first respondent provided information about these, and about other matters, in
the form of an affidavit from Elizabeth McLachlan, its licensing manager. She provided
information on the licensing process generally, and on the particular call logs and emails
that the petitioner criticised. I have not relied on her commentary on the call logs where she
seeks to explain why a call handler recorded a call in a particular way: eg paragraph 41,
license 144389/150137. Although her role qualifies her to give informed commentary about
documents that come from the first respondent, she was not party to any of the calls in
question. I have no reason to doubt her description of the process that ought to be followed
when someone applies for a licence. It is necessarily a description of a general character,
and I have not relied on it in relation to the petitioner's contentions about individual
applications. In some instances her commentary is, in effect, submission about the merit of
the petitioner's criticism: eg paragraph 42. I have treated it as submission rather than
evidence.
[103]
The third and fourth respondents made their own investigations with their members
about the petitioner's allegations regarding the licensing process. They produced two
47
affidavits describing how the investigations were carried out, and tables setting out the
responses from their members.
[104]
Some call logs contain lengthy and detailed records of telephone conversations,
whereas others are much shorter. Some of the records disclose that the first respondent has
visited on one or more occasions before. Where that is the case, it is understandable that
fewer details have been recorded: eg licences 140960, 140968. Some contain expressions
which, taken in isolation, suggest that the first respondent did not consider every
application in respect of PAL on the basis of its individual merits. The call log for
licence 144389 (later renumbered 150137) is an example. The call handler records having
told the applicant that if his land had been PAL, he would have been given a licence straight
away without the need for a site visit. Others provide a clear account of the features of the
land, why damage is apprehended and indicate that particular other measures would not
work: eg 141282. They are properly described as "snapshots" of a particular point in the
application process.
[105]
The petitioner's criticism in a number of instances relates to an alleged failure to
consider alternatives to lethal control, as opposed to alternatives to derogation, or to allow
lethal control where other non-lethal derogations have been allowed as well. The criticism is
predicated on a mistaken interpretation of the 1994 Regulations, and is irrelevant. Examples
are in relation to licences 140954, 141841, 142050, 143406,147828, 158639. Some of the
criticisms are because the call log records that there is not a problem, but an apprehension,
because of beaver activity nearby, and the nature of the landscape, that there will be:
eg licence 141282. As I have already indicated (paragraph 48), it is not necessary that serious
harm should have occurred before a licence is issued. The aim of the licensed activity is to
prevent the harm.
48
[106]
Licence 140968 refers to the circumstance that a mitigation trial of attempting to
exclude beavers from the burn and drainage system has been completed at one site, and also
to the possibility that the trial of a water gate may help to exclude beavers in the longer
term, meaning that lethal control would not be necessary in the longer term. The first
respondent had to consider whether there was a satisfactory alternative to granting a licence
to prevent serious harm at the time of the application.
[107]
I am not satisfied that the material produced by the petitioner demonstrates that the
first respondent has generalised unlawful practices of the sort alleged. In a number of
instances their criticisms are misconceived.
[108]
For completeness, I record that the information provided by the third and fourth
respondents provides a mixed picture. Some of their members describe quite a demanding
and involved process in applying for a licence, and others do not. The responses come not
just from the holders of the licences mentioned in the pleadings, but also from holders of
other licences granted by the first respondent. Some describe many site visits by the first
respondent and trials of mitigations, or the submission of photographic evidence vouching
that the topography was not suitable for particular mitigations, whereas others simply
describe filling in a form.
[109]
Those members whose licences are mentioned in the pleadings generally describe
much more extensive interactions with the first respondent than might be inferred simply
from looking at the call logs. Their descriptions reinforce my view that the call logs should
be treated as "snapshots".
49
Failure to review licences
[110]
This raises no separate point of law. The contention is that the licences should have
been reviewed and revoked because they should never have been issued in the first place.
Disposal
[111]
Most of the declarators sought invite me to express conclusions about the law. I have
expressed conclusions about the matters of law necessary for the disposal of the petition in
this opinion, and see no purpose in granting declarators. I will reduce the licenses
mentioned in paragraph 100.
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