BADGERS AND THE LAW

Badgers are protected in Britain by the Protection of Badgers Act 1992. The purpose of this Act is to protect the animals from deliberate cruelty and from the incidental effects of lawful activities which could cause them harm. Under this legislation it is an offence to:

wilfully kill, injure, take, possess or cruelly ill-treat a badger, or attempt to do so
interfere with a sett by damaging or destroying it
obstruct access to, or any entrance of, a badger sett
disturb a badger when it is occupying a sett

Note that if any of the above resulted from a person being reckless, even if they had no intention of committing the offence, their action would still be considered an offence.

A person is not guilty of an offence if it can be shown that the act was 'the incidental result of a lawful operation and could not have been reasonably avoided'; only a court can decide what is 'reasonable' in any set of circumstances. In practice, a developer can avoid running into problems here if the procedure summarised on page 14 is followed.

Penalties for offences under this legislation can be up to six months in prison and a fine of up to £5,000 for each offence.

A badger sett is defined in the Act as 'any structure or place which displays signs indicating current use by a badger'. This can include culverts, pipes and holes under sheds, piles of boulders, old mines and quarries etc.

'Current use' does not simply mean 'current occupation' and for licensing purposes it is defined as 'any sett within an occupied badger territory regardless of when it may have last been used'. A sett therefore, in an occupied territory, is classified as in current use even if it is only used seasonally or occasionally by badgers, and is afforded the same protection in law.

LICENSING

The 1992 Act provides for licences to be issued for certain activities which would otherwise be prohibited. Scottish Natural Heritage (SNH) is the authority responsible for issuing licences under the Act for the purpose of development as defined under the Town and Country Planning (Scotland) Act 1972, now superseded by the Town and Country Planning (Scotland) Act 1997.

A licence must be obtained from SNH for any work that may cause disturbance to a badger or involves the damage or destruction of a sett. Licences are generally, but not exclusively, issued to badger experts, whose role is to provide on-site advice and, where necessary, supervise all the licensed work. In some cases, the licence may be issued directly to the developer, in which case the badger expert would be named as their agent.

To whom the licence is issued is dependent on the development, but also on what and who is involved in the necessary works. Should there be any uncertainty over the respective roles and responsibilities in this regard, the developer should contact SNH for clarification.

Licences are not normally issued during the breeding season, which is between 30th November and 1st July, and cannot be issued retrospectively. Activities that necessarily involve disturbance should therefore be programmed to take place outwith this period. Licences are usually only issued after full planning permission has been granted so that there is no conflict with the planning process.