Despite what the weather outside might suggest (it’s cool and wet across the UK as of writing), wild birds – in an admirable show of resilience – will soon be breeding again. This is the start of a critical time of the year when birds are looking for safe places to nest and to rebuild populations after the winter – but it’s also when gardeners are looking at cutting back their hedges and trees.
- This is necessarily a brief overview and we’re not looking here at agricultural work. For more detailed information please see our Protectors pages ‘Birds and the Law’, ’Hedgerows and the Law’, ‘Nesting birds, Nests and the Law’, and ‘Wild Bird Eggs and the Law’. The forty Protectors pages were largely designed to put ‘eyes in the field’, but are hopefully also helpful more closer to home!
The Protection of Birds Act and the Wildlife and Countryside Act
That wasn’t always the case. Egg collecting, for example, was a ‘hobby’ that for a while was almost thought of as a good way for children to stay connected with the countryside, and there was little control over the shooting or killing of wild birds. The situation for wild birds improved hugely in June 1954 when Tufton Beamish (using what was at the time the longest private member’s bill to go before the House of Commons) secured the passing of the first Protection of Birds Act. There are exemptions of course (the nonsense of General Licences is a prime example), but seventy years later a major (and crucial) part of that Act is still in force and it is still largely illegal to:
- kill, injure or take, or attempt to kill, injure or take, any wild bird; or
- take, damage or destroy the nest of any wild bird while that nest is in use; or
- take or destroy an egg of any wild bird.
In 1981 the Protection of Birds Acts of 1954, 1964 and 1967 (and the Conservation of Wild Creatures and Wild Plants Act 1975) were repealed and rolled into the Wildlife and Countryside Act (WCA), which is still the primary legislation protecting wild animals, plants and habitats in the UK today.
Nests and eggs
- Intentionally take, damage or destroy the nest of any wild bird whilst it is in use or being built.
- Intentionally take or destroy the egg of any wild bird, or trade any wild bird egg.
That sounds clear enough. It is against the law to take, damage, or destroy the nests or eggs of wild birds. if we see someone doing that, they are breaking the law…
However, the two points above are actually quite nuanced, and provide both benefits to wild birds and defence (what many of us might call excuses) for anyone falling foul of the law.
Firstly the benefits:
With much foresight, the WCA doesn’t strictly define a ‘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 say from 1st February), some birds (Wood Pigeons and Collared Doves for example) will nest all year round if conditions are right. Globally this February was the warmest on record, meaning those conditions are becoming ‘right’ earlier than in the past. Birds nesting in suburban gardens like Blackbirds and Robins have already been found nesting in January because of the additional ‘heat island effect‘ which means that gardens (which are often sheltered places) tend to be warmer than the surrounding, more open countryside.
Normally Protect the Wild bemoans flexibility in law as it offers up loopholes to the unscrupulous, but in this case it protects birds better because when they nest is not fixed or determined by the calendar – it is therefore always an offence to take, damage or destroy the nest of any wild bird while it is in use or being built.
Secondly, the phrase ‘being built’ is similarly open and beneficial for birds, because there is no ‘they’ve only just started building their nest so I thought it didn’t matter if I knocked it down/cleared it away’ excuse.
- 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 sticks the first bit of mud on a wall or nail.
- 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.
Excuses:
As alluded to at the top of the post, a surprisingly common ‘nest/neighbour’ issue is the person who insouciantly cuts a hedge in March or April (or hires someone else to cut it) and insists they’re doing no harm because ‘birds aren’t nesting yet’.
Depending on what ‘advice’ is given, you might read that it is illegal to cut hedges in the Spring. But that’s not always the case.
Yes, there is a ban on cutting hedges between March and August (or was until the end of 2023 when the regulations lapsed) but that only applies to subsidised or protected agricultural land. The regulations protecting hedgerows in the countryside don’t apply to hedges in or marking the boundary of gardens.
The Wildlife and Countryside Act protects birds everywhere, and if a nest is being built or used then that bird is nesting no matter the time of year or how much of the nest has already been built, but that doesn’t prevent hedges in gardens from being cut or trimmed.
Surely nesting birds will be disturbed though? Yes, they undoubtedly will, but while the RSPB says birds are at their most vulnerable when nesting and any disturbance could kill or injure wild birds and their young (or cause parent birds to abandon their nest, eggs and young), crucially the legislation does not include ‘disturbance’ – (unless, that is, they are a species on Schedule One of the WCA, when it becomes an offence to intentionally or recklessly disturb Schedule One species whilst they are building a nest or are in, on or near a nest containing eggs or young: but birds on Schedule One are the rarest and most threatened species in the UK and highly unlikely to be nesting in a domestic garden hedge).
All of which frustratingly means that a neighbour with a hedge trimmer could happily slice away at a hedge or ivy-covered wall disturbing nesting birds, but as long as they don’t damage or destroy a nest or destroy any eggs they are in the clear. The assumption is that once the work is finished the bird will return and carry on as before – though why a bird would return to build a nest or sit on eggs if half the covering vegetation has been removed making the site far less secure from predators isn’t explained as far as we can discover…
It is also important to note the key phrase ‘intentionally’. Anyone who has grappled with the Hunting Act will have run repeatedly into this issue of proving ‘intention’. It would require a lot more space than we have here to really go into details, but in brief:
- ‘Intentionally‘ means ‘having foresight of consequences’ – doing something or knowing that doing something will almost certainly result in a particular outcome.
- Accidentally doing something is not the same as intentionally doing it.
This can be problematic in law, as it’s very difficult to prove intention and the probability of an outcome, but this is where our intervention could be really important.
Accidents can happen, but if someone (our casually indifferent gardener for instance) 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 and should be reported to the police (whether a court would agree and convict them is another matter of course).
We can help protect nesting birds
Having said that, if having a chat doesn’t work (or it’s unsafe to get involved with the trimmer-wielding neighbour-from-hell) and there is an active nest at risk hand the matter over to the police.
We 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.
As a final word of caution before we confidently wade in quoting this or other articles, the Wildlife & Countryside Act does contain what amounts to a proper get-out clause. The WCA says “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“.
A mouthful of a phrase, but:
- ‘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, no law has been broken.
On top of that, 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 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, but there are any number of examples online where this has not happened and nests have been damaged or destroyed.
- In theory then, nests and eggs do have a good bit of protection under the law. But there are exemptions which (and we don’t know this for a fact, but looking at other legislation it’s a good bet) were insisted upon by landowners who don’t always have the best interest of wild birds in mind and/or are too impatient to wait while the next generation is raised. While not the deliberate threats to life created by the ‘trail hunting’ loophole or the ‘observation and research’ exemption shoehorned into the Hunting Act, it’s a shame nonetheless that something as fragile as an egg doesn’t have the full and unambiguous protection of the law it surely deserves.
