Wildlife and Natural Environment (Scotland) Act 2011


At the beginning of January, further provisions of the Wildlife and Natural Environment (Scotland) Act 2011 (the Act) came into force. The Act introduces new ways in which people in Scotland can be guilty of certain offences under the Wildlife and Countryside Act 1981 (the 1981 Act).

Certain offences under the 1981 Act, including those related to the sale of wild birds and their eggs, can now be committed by someone who causes or knowingly permits the criminal act to be done. This is a concept already seen in other areas of environmental law e.g. contaminated land.

Additionally, where an offence under part 1 of the 1981 Act is committed by a Scottish partnership or other unincorporated association, a partner or a person concerned in the management of the association can also be guilty of the offence if it is proved to have been committed with their consent or connivance, or attributable to any neglect on their part. This brings the position for partnerships and unincorporated associations into line with that for companies.

Where a party has the legal right to kill or take a wild bird and manages or controls the exercise of that right, they could be liable for certain offences under the 1981 Act committed by their employees and agents as well as those committed by people providing services to the party. It is a defence for the party to show that they did not know the offence was being committed by the other party and that they took all reasonable steps and exercised all due diligence to prevent the offence being committed.

Other key provisions that have been brought into force to date include:

Game birds: the offences in Part 1 of the 1981 Act relating to wild birds have been extended to apply to game birds.
Areas of special protection: areas of special protection designated under the Wildlife and Countryside Act 1981 (formerly bird sanctuaries) have been abolished.
Wild and brown hares: a new offence of intentionally or recklessly killing, injuring or taking wild and brown hares in their close season has been introduced. There are exceptions to the offence such as killing a hare which is so seriously disabled that there was no reasonable chance of it recovering.
Snares: there are new requirements on people setting snares including a requirement to be trained and a requirement to attach to any snares set, a tag which displays that person's identification number issued by a chief constable.
Licensing: licences can now be granted to undertake activities for social or economic purposes which would otherwise be an offence under particular provisions of the 1981 Act. However, the activity authorised must give rise to, or contribute towards the achievement of, a significant social, economic or environmental benefit and there must be no other satisfactory solution.
Biodiversity Duty Report: every three years, all public bodies must prepare and publish a report on the actions they have taken in pursuance of their duty to further the conservation of biodiversity.
SSSIs: SNH can now combine two or more SSSIs into a single SSSI. However, it does not entitle SNH to add land which was not previously included in any of the existing designations or add any operations requiring consent which were not included in either existing designation.