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SECTION 5 - SPECIES LICENSING

PART I - BACKGROUND INFORMATION

The law gives certain species of animal, birds and plants special protection making it an offence for them to be taken, killed or disturbed. Protected species licensing activity in Scotland is carried out under four pieces of legislation: the Wildlife and Countryside Act 1981, the Conservation (Natural Habitats, &c.) Regulations 1994, the Badgers Act 1992 and the Conservation of Seals Act 1970.

It is recognised that there are circumstances where it is appropriate for certain acts to be licensed which would otherwise be illegal under the terms of these Acts. For example, it is an offence to obstruct, damage or destroy a bat roost. However, where a property will suffer serious damage if repairs are not carried out, and as a result of the repairs being carried out a bat roost will be obstructed and effectively destroyed, it would be possible to obtain a licence to disturb the roost. Legislation therefore permits licences to be issued for such purposes in a range of circumstances.

Licensing administration

With the establishment of Marine Scotland, licensing activities relating to seals and piscivorous birds will be dealt with by that organisation.

The remainder of species licensing falls within the responsibility of the Rural Directorate of the Scottish Government. Administration of those licences is currently shared between the Scottish Government and Scottish Natural Heritage ( SNH). In general, SNH is responsible for issuing licences for scientific, research or educational purposes, and the Scottish Government is responsible for issuing licences for wider public safety or land management purposes.

This section of the consultation document is concerned with those species licences which fall outwith the responsibility of Marine Scotland. It also excludes general licences as it is proposed that the responsibility for determining the policy on which these are issued should remain a responsibility of the Scottish Government. General licences relate solely to birds and mainly concern what were previously classed as 'pest' species such as crows. The General Licences can be downloaded from the Scottish Government website and allow farmers and other land users to access licences for specific purposes directly rather than having to apply for individual licences. The General Licences also cover areas such as air safety at registered aerodromes, again to allow action against common problem species without having to apply for specific licences.

The numbers of licences which have been issued by the Scottish Government and SNH in recent years is set out below.

PART II - LICENSING REFORM

Rationale for considering legislative reform

The 2005 Strategic Review of SNH recommended that there should be a review of respective SNH and Scottish Government roles relating to species protection (including licensing and management) to ensure respective roles were coherent and clear, if necessary proposing modification to simplify or clarify them. ⁵ Arrangements for the administration of licences were subject to an internal review, informed by a report produced by the Scott Wilson consultancy. That review identified a number of possible changes in administration, although no reforms were progressed at that time. The Scottish Government now intends to progress the issue through the prospective Wildlife and Natural Environment Bill if legislative changes are required.

One-off species licence applications cover hundreds of species of animals and plants and the level of protection given to species varies. The variety of licences involved can make administration of the process complex due to the subject and process knowledge required. The administration process is further complicated by the fact that there are several different bodies/individuals responsible for the issuing of licences, sometimes for the same species. This situation can give rise to confusion amongst clients about the circumstances in which a licence can be obtained, and who the appropriate licensing authority is for that licence.

Scottish Government objectives

The Scottish Government's ambition for species licensing is that it should:

• be simple from a customer viewpoint
• ensure consistent, coherent and evidence-based decision-making
• establish clear roles and responsibilities
• concentrate the delivery with the most appropriate organisation

Options for reform

There are three options for how species licensing applications could be administered.

Option 1 - The status quo

The first option is to continue with current licensing arrangements, with the function shared between the Scottish Government and SNH, and seeking to improve the efficiency and effectiveness of the process. Improvements have already been made in recent years to the administration of licences by the Scottish Government, particularly in terms of turnaround time of applications. Further improvements could be made, for example, by establishing common administrative arrangements between the Scottish Government and SNH licensing offices, establishing a shared application form and database, joint training, a joint website and better signposting for customers about where to obtain a licence. Indeed, all of these improvements are under active consideration.

The advantages of this option would be that there would be minimal structural disruption to how the system currently operates, that improvements could be delivered for relatively small investment, and that there would be no need for legislative changes. On the other hand, this option would leave in place the sharing of an administrative function between two different agencies when there appears to be no compelling reason for the function not to be consolidated with one organisation.

Option 2 - SNH to be the main licensing authority

The second option is for SNH to take on responsibility for those licences currently administered by the Scottish Government. SNH would be the natural Government delivery partner to take this on given its responsibility for the operational delivery of government policy on the natural environment, and its central role in the current licensing system through the provision of advice to the Scottish Government on the licences it issues and in administering the substantial majority of existing licences.

The advantages of this option are that it centralises staff resources and experience in one organisation, and transfers an operational function to the appropriate governmental delivery organisation. It would provide one point of contact for all customers who wish to obtain a licence, and would potentially increase the consistency, efficiency and coherence of the licensing process as whole.

The disadvantages of the option are the disruption which might result from the transferring of operational responsibility from one organisation to the other, and the resource implications for SNH in taking on an increased licensing workload. There is also a recognised tension in asking an organisation concerned with nature conservation to take on the licensing activities which can seem to contradict this core aim. However, SNH are already statutorily obliged to take appropriate account of the needs of agriculture, fisheries and forestry, social and economic development, archaeological and historical interests, and the specific interests of owners and occupiers and local communities. This means that SNH already consider this 'balancing duty' when processing or acting as consultees on licence applications currently administered by the Scottish Government.

Option 3 - Devolution of certain licences to local authorities

The third option (which could be progressed along with the second option) is to devolve the responsibility for issuing appropriate licences to local authorities. This could be done by individual local authorities or a number of local authorities working together. This option would apply to those licences which relate to planning applications, locating the decision-making function with the same authority which makes the decision on the overall planning decision. It would devolve decision-making to the local level, with SNH continuing to provide specialist advice to ensure decisions were taken on a consistent basis. Those licences which did not relate to planning decisions would be undertaken either by SNH or the Scottish Government, depending on the decision taken in relation to options 1 and 2. In 2008, the Scottish Government dealt with 88 planning consent cases, the substantial majority of which related to bats.

The main advantages of this option would be to devolve decision-making to the local level where local authorities are already responsible for issuing a range of licences and remove the requirement for applicants to undertake two separate application processes (to seek planning permission from the planning authority and to obtain a licence from the Scottish Government). Planning authorities already take account of any relevant wildlife issues as a material consideration before considering whether or not to grant planning permission. The practical effect of this proposal should therefore be that in relevant cases planning authorities would seek advice from SNH on wildlife management issues before deciding whether to grant planning permission and the related licence. From the applicants point of view this would reduce any confusion resulting from the need to obtain two separate consents and reduce the potential for incompatibility between the licence and any planning conditions.

In terms of potential disadvantages, this option could increase the scope for confusion about where customers could obtain the licence they require, although this could be addressed through improved sign-posting. There may also be potential for this option to reduce the consistency in the way in which licences were administered.

Q58. What is your view on the proposition that licensing is best concentrated within operational authorities rather than central government?

Q59. Which authority or authorities do you think should be responsible for the administration of these licences?

Q60. What is your view on the proposal that species licensing that is associated with development requiring planning consent would be best dealt with by local authorities?

PART III - OTHER LICENSING ISSUES

As well as considering who should be responsible for the administration of licences there are a small number of issues relating to the basis on which licences can be issued, and the consistency in the way in which different statutes operate, which the Scottish Government wishes to address.

Purposes for which licences may be issued

There is currently an anomaly between the activities for which licences can be issued for badgers and European Protected Species such as otters when compared with the remainder of the UK protected, specifically species such as red squirrels, pine martens and water voles which are listed on schedule 5 of the Wildlife and Countryside Act 1981.

The 1981 Act gives protection to various species against their killing, taking, sale, possession etc. and against the destruction, disturbance etc. of their places of shelter. At present, there is no listed purpose under which development, forestry or agricultural activities can be licensed.

In contrast, the Conservation (Natural Habitats, &c.) Regulations 1994 provide for licensing activities for the purpose of " imperative reasons of over-riding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment". This provision enables, for example, development activities to be licensed where their impact on species is proportionate to the activity.

Consistency across the legislation would be achieved by modifying the 1981 Act to enable development activities to be one of the activities for which a licence could be granted.

Q.61 What are your views on the proposal that the 1981 Act should be modified to allow for licences to be granted for development activities for Schedule 5 species in the same way as can presently be done for licences granted under the 1994 Regulations and the 1992 Act?

Animals which may not be killed or taken by certain methods (Schedule 6 of the Wildlife and Countryside Act 1981)

The Conservation (Natural habitats, &c.) Amendment (Scotland) Regulations 2007 (No.1) removed from Schedule 5 of the 1981 Act all animals that were also European protected species. Some European protected species remain on Schedule 6 of the 1981 Act. There is therefore some duplication with the protection offered under the 1994 Regulations for these animals.

It may therefore be appropriate that horseshoe bats, typical bats, wildcat, bottle-nosed dolphin, common dolphin, common otter and harbour (or common) porpoise are removed from Schedule 6 of the 1981 Act to address this duplication. These species would continue to be given full legal protection under the 1994 Regulations.

Q.62 What are your views on the proposal to tidy up Schedule 6 of the 1981 Act and remove those species which are covered by the 1994 Regulations?

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