Hamish Lean: When conservation and agriculture clash

Hamish Lean

Hamish Lean outlines an unusual environmental case that will be heard in the Court of Session next month.

Beavers became a protected species in Scotland in May 2019. There are two populations, one in Knapdale in Argyll, introduced as part of a scientific trial and properly licensed and another in the Tay and Earn catchment areas, originating from unauthorised releases and escapes from captive populations.

As a protected species, it is unlawful to kill or trap beavers without a licence from Naturescot, formerly known as Scottish Natural Heritage.

Naturescot has authority under the Conservation (Natural Habitats, &c.) Regulations 1994 to issue licences to trap and, where necessary, kill beavers. Where a licence is sought to kill the animals, it will only be granted for the purpose of preventing serious damage to agriculture.

Licensed control has almost exclusively been restricted to farms on Prime Agricultural Land.

During 2019, 87 were killed and 15 live-trapped under licence.

It is thought the total beaver population outwith Knapdale lies somewhere in the range of 319 to 547 animals.

That perhaps a quarter of the population was destroyed in the same year they became a protected species caused considerable controversy.

The rewilding charity Trees for Life, after a crowdfunding exercise to cover its legal costs, has raised an action for judicial review in the Court of Session to examine the issue of lethal control licences.

The charity argues that where beavers are causing problems to farmers they should be trapped and relocated to more suitable habitats elsewhere in Scotland, and issuing a licence to kill endangered wild beavers should be a matter of last resort.

A legal challenge is not something that can be raised on a whim and the court must assess all such cases, firstly to check the party raising it has a legitimate interest to do so and secondly that there is a real prospect of success.

Trees for Life has overcome these hurdles but it is unclear whether it will be successful at a full hearing. The case will be heard over two days at the end of May.

NFU Scotland and Scottish Land and Estates have both taken an interest in the case and are parties to it, supporting Naturescot. Their view is the issue of licences by Naturescot has been reasonable and proportionate, given the damage caused to agricultural land.

Naturescot points out that prior to becoming a protected species, lethal control was completely unregulated and that the proportion of the overall range of beavers in Tayside covered by licences is likely to be less than 10 per cent, with control only being carried out on around five per cent.

The case is an interesting example of popular sentiment funding legal proceedings to challenge decisions of a public body, and an example too of conservation interests clashing with agricultural interests.

Farmers clearly have a very legitimate interest in protecting agricultural land in the interests of food production. Before May 2019, the beaver population was expanding without protection and subjected to uncontrolled culling.

Both sides of the debate support control measures and the question for the Court of Session will be to determine whether or not Naturescot has struck the right balance between lethal and other forms of control or should be required to think again.

Hamish Lean is a partner at Shepherd and Wedderburn LLP