Nesting birds and the law

Here’s a relevant question for the springtime: did you know that in British law (as it applies to England, Wales and Scotland) it is illegal – ie it is against the law – to deliberately 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?

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 as current as possible and is largely taken from the Government’s own online advice. This information is supplemented with advice from the RSPB. If you do find a mistake or a gap though, please let us know. You could be saving the lives of wild birds or helping a colleague resolve a dispute with a neighbour!
• Please note we are NOT lawyers. The following is intended for guidance but is based on many years of personal experience and communications.

[Last edited 12 May 21 to add information on birds nesting in roof spaces in response to a comment below]

 

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.

(NB: Since the Wildlife and Countryside Act (WCA) came into force nature conservation has become a devolved function. As a result, the Wildlife and Countryside Act has been amended and supplemented by provision in a number of other pieces of legislation, including: the Countryside and Rights of Way (CRoW) Act 2000 and the Natural Environment and Rural Communities Act 2006 (in England and Wales); and the Nature Conservation (Scotland) Act 2004 (in Scotland) and Wildlife and Natural Environment (Scotland) Act 2011. In Northern Ireland, the main legislation is contained in the Wildlife (Northern Ireland) Order 1985 (as amended), the Nature Conservation and Amenity Lands (Northern Ireland) Order 1995, and The Environment (Northern Ireland) Order 2002. The WCA is still legally binding though.)

Let’s have a look in more detail at what the sentence about wild birds and their nests written into the WCA means in practical terms:

• ‘Intentionally‘ means ‘having foresight of consequences’ –  doing something or knowing that doing something will almost certainly result in a particular outcome. This can be problematic in law, as it’s very difficult to prove intention and the probability of an outcome.
• As an example though, if someone (say a gardener or developer) knows or has been reliably informed about the law protecting nests and eggs – knows or has been reliably informed that there are nesting birds within the hedge or tree they intend to work on – knows or has been reliably informed that the work they’re planning will damage a nest or eggs –  then goes on to do work that does indeed damage a nest or destroy eggs within that nest as a result – it seems to us that they can’t fail to have known what the consequences would be and are therefore breaking the law.
• (Note that ‘disturb’ is not the same as damage, though see the section on Schedule 1 below)

 

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 Wildlife & Countryside Act also 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“. 

• ‘Shown‘ means being able to demonstrate or prove something.
• ‘Incidental‘ essentially means ‘unplanned’ (so not ‘intentional’)
• ‘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.
• So if it can be proved that a nest, egg, or bird was unintentionally or unavoidably destroyed during licenced or authorised work, then no law has been broken. Which seems to us like one heck of a get-out clause frankly…

 

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Schedule 1 (or One)

There is additional protection during the nesting 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 there are additional conditions. It is an offence to intentionally or recklessly disturb them while nest building, BUT ALSO while they’re at or near a nest containing eggs or young, or to disturb their dependent young.

Reckless activity, for example, might include working too near the nest of a Schedule 1 species despite knowing it was there, or disturbing adults or young whilst 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 are only visitors to the UK breeding in very small numbers, but note that some frequently photographed and more widespread species are on the list including Kingfisher, Barn Owl, Little Tern, Bearded Tit, Woodlark and Dartford Warbler.

• 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.

 

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Individual and General Licences

(There are exemptions to the way wild birds are protected under the Wildlife and Countryside Act. They are perhaps outside the remit of this post as they are complex and often designed for use by industries (shooting, agriculture, timber etc) rather than homeowners. However we have included a few details about them here as they may be useful as an initial starting point. Full details are online at the gov.uk website.)

A series of limited exemptions to the Wildlife and Countryside Act are covered by what are known as Individual (or Specific) Licences (which need to be applied for through a statutory nature conservation agency) and General Licences (which do not).

 

Individual Licences relate to permission to take an action to “control wild birds” that would otherwise break the law and which is not covered by a General Licence. An applicant must apply to a statutory nature conservation agency (in England that would be Natural England) for a licence and the agency will then decide whether that situation merits a licence or not. If they agree they will then issue a licence to a named individual for that action to take place. An example would be A08 which allows certain species to be ‘controlled’ under strict conditions to “prevent disease or serious damage to livestock, foodstuffs for livestock, crops, vegetables, fruit, growing timber, fisheries or inland waters“.

A named licence holder can use this licence to control wild birds, their nests and eggs by:

• disturbing them
• killing them
• taking them
• using a prohibited method of control on them

Should a licence be refused but the applicant carries out the action anyway, they would be breaking the law.

 

General Licences are wider-ranging. Essentially they set out the purposes and circumstances under which killing otherwise protected birds and/or removing their nests is legal. They are issued annually by the Department for Environment, Food & Rural Affairs (Defra) who say on their website that, “General licences are permissive licences, meaning that users do not need to apply for them, but they must comply with their terms and conditions, when undertaking licensed acts. They allow users to kill or take certain species of wild birds for defined purposes such as preventing serious damage to certain commodities such as livestock and crops, for the purposes of conserving wild birds, plants and animals, or for public health and safety reasons.”

In theory, then, anyone ‘authorised’ (a landowner or someone working with the landowners’ permission) can claim they are using a General Licence. They do not need to be specifically applied for and they are not issued to individuals.

However, the terms of and the species on the General Licences were extensively revised for 2021 by Defra after a court challenge by Wild Justice who successfully argued that licences across the UK were badly flawed and were often simply a cover for shooting interests, not conservation interests, to carry out the casual killing of birds. In some circumstances, they argued, General Licences were unlawful because they did not specify the circumstances under which their use would be lawful and that there were some species included with unfavourable conservation status (like Lesser Black-backed Gull) that should never have been on the General Licences in the first place. In their words, the licences added up “to casual licensing of casual killing of birds“.

The General Licences still allow wild birds to be killed then or – in some cases – their nests to be removed. They are open to interpretation perhaps, but are at least more robust than pre-2021.

The most relevant three licences in operation since 01 Jan 2021 are:

• GL 40 (a general licence to kill or take certain species of wild birds to conserve endangered wild birds, or flora and fauna – the species covered are Carrion Crow, Jay, Magpie, Canada Goose, Egyptian Goose, Monk Parakeet, Ring-necked Parakeet, Sacred Ibis, Indian House Crow)
• GL 41 (a general licence to kill or take certain species of wild birds to preserve public health or public safety – the species covered are Jackdaw, Feral Pigeon, Canada Goose, and Monk Parakeet)
• and GL 42 (a general licence to kill or take certain species of wild birds to prevent serious damage and prevent the spread of disease – the species covered are Carrion Crow, Jackdaw, Magpie, Feral Pigeon, Rook, Woodpigeon, Canada Goose, Monk Parakeet, Ring-necked Parakeet, Egyptian Goose, Indian House Crow)

 

Note that General Licences are available for use on and around protected sites, “provided that the user complies with any conditions that apply to that site and has consent from Natural England where needed“.

 

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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.

 

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‘Old’ nests and roof spaces

An ‘old’ nest that is NOT being used by nesting birds 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). Some nests are used as roosting sites in winter (eg by wrens) so are still important, but unless they are being used as nests they are not protected.

• This also (unfortunately) applies to declining species like swifts that build nests in roof spaces. While they will habitually return to established sites, there is nothing in law that protects those nests when they are not occupied. This is an issue recognised by the RSPB which states that “If you must deter birds from nesting in your roof, work to deny access must be done during the winter months when they are not nesting (note: pigeons can nest throughout the year).” They go on to say that “You should always avoid roofing work if you know birds are nesting there, but sometimes a roof nest is only discovered during renovation work. If this happens and the roof cannot be left until the young have flown, you can make an artificial nest box for a starling or sparrow quickly and simply by cutting a four-litre ice cream tub.”

Many bird habitats (so the places where they nest rather than the nests themselves) are protected though and local planning authorities (LPAs) have a duty to conserve their biodiversity. It would be an improvement in law if nests of declining species were protected when empty and not in use as well.

 

 

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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].

 

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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 like overkill, 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.

 

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Hedge cutting during the ‘nesting season’.

How about the neighbour who insists on cutting a hedge (or hires someone else to cut it it) 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 the law, knows that there is an active nest in the hedge, and then still cuts that hedge damaging or destroying the nest or any eggs/young birds in the process.

• 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 have ‘foresight of consequences’ (as explained above in ‘Intentionally’) and still damage or destroy a nest or eggs then it’s likely they have committed a crime – whether a court would convict them is another matter of course…

Note that there is an exception (isn’t there always?). Councils have a duty under the Highways Act 1980 to ensure that the highway is not obstructed. A council or local authority may therefore trim a hedge (or compel a landowner to trim a hedge) as a safety measure if the hedge is causing an obstruction either on the highway – for example a road or footpath – and it restricts vehicle or pedestrian movements. The contractor should still carry out a risk assessment though, but there are any number of examples online where this has not happened. 

 

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Tree Felling

The following two paragraphs are copied from an email received by us on 06 Jan 2021 in response to a petition we’d signed 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 refers specifically to the law on ‘protected species’ (which in the case of felling trees will often involve bats, and without exception in Britain all bat species and their roosts are legally protected by both domestic and international legislation) and comes directly from the government itself we felt it was worth adding to this page (NB 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

 

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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.

 

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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 repeat (see the top of this post) 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. If it’s safe to do so, then 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 or it’s unsafe to get involved and you know there is an active nest at risk 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.
• If you would prefer to remain anonymous call Crimestoppers on 0800 555 111M.
• Many local authorities now have hotlines or online forms where you can also report your concerns anonymously.

 

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