Nesting birds and the law

Here’s a relevant question for the springtime: did you know that it is illegal – ie it is against the law – to deliberately disturb nesting birds or to remove any nests that are being used? That includes the birds and nests in our gardens, the birds that are nesting precisely where developers want to build new houses, and the birds that may try to nest on those (and our) houses too. If the answer is ‘No’ or even ‘Yes…but I’m not sure of the details’, hopefully this post will help.

The information here is current and is largely taken from the Government’s own website. This information is supplemented with advice from the RSPB and personal experience and communications. If you do find a mistake or a gap though, please let us know. You could be helping a colleague resolve a dispute with a neighbour!

[Last edited 06 Jan 21 to update information on tree felling]

 

 

The Wildlife & Countryside Act 1981

Under the Wildlife & Countryside Act 1981 (the primary legislation which protects animals, plants and habitats in the UK), it’s ‘an offence intentionally to kill, injure or take any wild bird, or take or destroy their eggs or nest, or damage a nest, while that nest is in use or being built’. It is also illegal to deliberately block access to a nest by, for example, stopping birds entering your roof to get to an active nest.

 

Let’s have a look in more detail at that opening paragraph.

• ‘Intentionally‘. Intentionally means deliberately or knowing that doing something will result in a certain outcome. This is a problematic word, as it’s sometimes very difficult to prove intention in law. And perhaps particularly so when it comes to wildlife as few people know or properly understand wildlife law so can make ‘mistakes’ – and some people seem to think that if they do ‘make a mistake’ no-one going’s to bother to prosecute them. However, ignorance of the law is not an excuse, and if someone knows or has been reliably told that if, for example, they cut down a tree or trim a hedge that is being used by a nesting bird they will damage a nest then they are acting intentionally (ie deliberately) and are therefore breaking the law.

• What does “in use or being built” mean? Clearly if a nest has eggs or young in it, then it is ‘in use’. How about ‘being built’ though? Is a single twig a nest? Is a single blob of mud on a nail in a barn being used by swallows a nest? The law is actually quite clear: a bird begins building its nest as soon as the first nesting material (a twig or bit of moss perhaps) is laid in place. A nest is being built when a swallow or a martin puts the first bit of mud in place. There is no ‘They’ve only just started’ excuse in law – when they’ve started to build, then the nest is being built. It’s perhaps not always obvious when a nest is in its earliest stages, but it’s illegal to damage a nest so just don’t take the risk. Remember, too, that some birds nest on the ground (eg Skylarks and Lapwings), using little more than a grass-lined depression. Some shorebirds nest in a shallow scrape on eg shingle. These are still ‘nests’ as covered by law.

• The law says that “It is not illegal to destroy a nest, egg or bird if it can be shown that the act was the incidental result of a lawful operation which could not reasonably have been avoided“. Let’s unpick that. ‘Shown‘ means actually being able to demonstrate something, not simply having assumed it. ‘Lawful‘ means having a valid licence or authority for the work being done. ‘Reasonably have been avoided‘ means that alternative steps have been examined and found to be impossible or impractical.

 

When do birds nest?

The Wildlife and Countryside Act does not specifically define a ‘bird nesting season‘, simply saying that if a nest is being built or contains eggs or young then it is active and therefore protected. While the breeding season is normally taken to mean between 1st March and 31st August (that’s according to the government’s website, other sources including the British Trust for Ornithology (BTO) say from 1st February), it’s important to note that eg Blackbirds and Robins have been found nesting in January, especially in suburban gardens. Climate change will lead to earlier nesting as our winters become milder and wetter.

‘Old’ nests

An ‘old’ nest that is NOT being used is not protected by law – except for the nests of Golden Eagles and White-tailed Eagles which are protected all year round, as are Osprey nests in England.

Many bird habitats (so the places where they nest rather than the nests themselves) are protected and local planning authorities (LPAs) have a duty to conserve their biodiversity.

 

Nest boxes

It is illegal to clean out nest boxes between 1st February and 31st July in case active nests are inside and are disturbed. If you have a nest box that you would like to clean out you must wait until the autumn when you can be sure that it is no longer being used. Unhatched eggs in the box can only be removed legally between September and January (August-January if you’re in Scotland) and must then be disposed of [see below for the reasons why].

 

Eggs

It’s worth noting that birds’ eggs are fully protected too. If a nest is damaged and it has eggs, you can’t ‘collect’ and keep them. They may be required as evidence in a police case of course, but even if not it is still illegal to have them in your possession. In fact, it has been illegal to take the eggs of most wild birds since the Protection of Birds Act 1954. That may seem harsh, but the law was designed to protect eggs from egg collectors.

The law was tightened again via the 1981 Wildlife And Countryside Act to stop egg thieves selling stolen eggs by claiming they were ‘old’ or collected by someone else. From 1981 it became illegal to intentionally take or destroy the egg of any wild bird, or trade any wild bird egg – or any part of a wild bird egg – no matter its age or when it was collected.

What might that mean if you are willed or have already been given an old egg collection then? You can’t sell the eggs, and unless you can find a museum willing to take them (and that’s not likely) the advice is that the eggs should be destroyed as you could end up in court for having them. In reality that’s probably unlikely, especially if you have a collection which definitely and provably predates the Wildlife and Countryside Act. There is defence under the Wildlife and Countryside Act if a ‘person can show that the egg was in any person’s possession or control before 28 September 1982’ or if a person ‘can show that an egg had not been taken, or had either been taken or lawfully sold to himself or another’.

In 2016 a government consultation looked at this so-called ‘pre-1981 defence‘ to make sure it wasn’t encouraging egg collectors and concluded that it did not. But do remember that when it comes to court cases involving wild bird eggs you need to show – or prove – that the eggs are being held by you legally. In other words, the burden of proof still lies with you and not the prosecuting authorities who merely have to prove you are in possession of bird eggs. For most individuals that may not be possible, and while eggs are beautiful they also mean that a bird died just so someone could put an egg in a case: like egg-collecting itself, the personal egg collection is best consigned to history.

 

Hedge cutting during the ‘breeding season’.

How about the neighbour who insists on cutting a hedge (or hires someone else to do the work) and insists they’re doing no harm? It’s surprising how common an issue this is.

As explained above, it is an intentional act, and therefore illegal, if someone (neighbour, tree-surgeon, gardener etc, it really doesn’t matter) knows there is an active nest in the hedge and still cuts that hedge, damaging or destroying the nest or any eggs/young birds in the process.

• They are breaking the law, therefore, if you or someone else shows them the nest, or shows them birds carrying nesting material or food to nestlings and they still go ahead and damage or destroy the nest. Many people will insist that they’re not going to damage or destroy a nest, or that they’ll only be working for a few minutes anyway. That may be the case BUT if they do damage or destroy a nest or eggs then they have committed a crime.

 

Tree Felling

The following two paragraphs are copied from an emailed response received 06 Jan 2021 in response to a petition asking the government to strengthen laws protecting young animals and birds during tree felling operations. It essentially repeats much of the advice we’ve given in this post, but as it comes direct from the government itself we felt it was worth adding to this page (the highlighting is ours):

“The Wildlife and Countryside Act 1981 makes it an offence to intentionally kill, injure or disturb a protected species or intentionally or recklessly damage any place a protected species uses for shelter or protection, including during the breeding or nesting seasons. A felling licence does not remove this responsibility. There is a defence if a person can show that the act was the incidental result of a lawful operation and could not reasonably have been avoided, but this would require them to demonstrate that they had followed best practice and taken all reasonable steps to avoid the disturbance or damage. The need to do this is brought to an applicant’s attention in a covering letter when they are issued with a felling licence.

“Where other species affected are European Protected Species, which includes bats and dormice but not red squirrels, the defence of an incidental result of a lawful operation does not apply and the landowner must carry out an assessment of the possible impact on protected species and, if necessary, apply for a licence from Natural England. Where proposed tree felling sites carry statutory designations to protect important features, such as biodiversity, the Forestry Commission is required to consult other relevant authorities and seek their agreement as to the appropriateness of any tree felling. This consultation may result in additional advisory notes being applied to a felling licence. Any additional permissions or consents that may be required, for example, Site of Special Scientific Interest consent from Natural England, must also be in place prior to felling taking place.” (Department for Environment, Food and Rural Affairs, January 2021)

 

Monitoring nests during surveys

Nest surveys can be an important part of conservation. Survey work should not ordinarily cause any damage to nests, of course, but as described above there are issues to be aware of. The British Trust for Ornithology (BTO) has created a page which explains in detail how to observe nests to ensure there is no risk to their welfare. This includes information on when to begin surveying nests, how often to look in nest boxes, and the Code of Conduct to follow when looking in a nest box.

 

Schedule 1 (or One)

There is additional protection during the breeding season given to birds (and their nests, eggs and dependent young) that are on what is known as Schedule 1 – there is a full list here. Note that more species are protected on the Isle of Man than in the rest of the UK.

For these species it is also an offence to intentionally or recklessly disturb them while nest building, while they’re at or near a nest containing eggs or young, or to disturb their dependent young.

Reckless activity might include working too near a Schedule 1 nest despite knowing it was there, or disturbing adults or young trying to take photographs of them.

Under normal circumstances most people will never be anywhere near a nesting Schedule 1 species as they’re mostly scarce residents here or only breed as visitors to the UK in very small numbers, but note that ALL birds of prey and owls have Schedule 1 protection.

• Note that “disturbing” (without destroying) an active nest of a bird that is NOT on Schedule 1 is not an offence even though the adults might desert the existing nest for somewhere quieter.

 

Suspect someone is breaking the law?

Those are the basics of the law on nesting birds. While in theory they give good protection to nesting birds and their eggs, they’re next to useless if they’re not heeded or enforced (see our post #Nestsnotnets for some blatant examples). So what can we do if we think the law is being broken?

The first thing to know is that is very difficult to prove that an offence has been committed, because (as stated above) ‘intention’ is hard to prove, and there must be evidence of damage or destruction. Secondly, remember that in most cases people are not intentionally breaking the law. No, it’s not an excuse to not know the law, but many people don’t. A polite conversation that mentions the risk to birds’ nests/eggs, and the laws protecting nests/eggs, may well be enough to stop any action which would break the law.

If that doesn’t work and they proceed when you know there is an active nest at risk AND they know they may be breaking the law, hand the matter over to the police. The police must take all lawbreaking seriously, and that includes breaking laws protecting our wildlife. All forces now have Rural Crime Teams and Wildlife Crime Officers, and you can ask to speak to them directly.

You can help them by making notes and taking pictures (if it’s safe and you can do so from your own property or a public place). When you do speak to the Police, obtain an incident number and keep a record of it so you can more easily go back to them or follow up if you need to.

You can also contact RSPB Wildlife Enquiries on 01767 693690. They will always try to help, but have no enforcement powers and will refer the matter to the police for investigation if they think a prosecution is warranted.

 

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