Nesting birds, Nests and the Law

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);
•  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.

While there are some minor differences in the law between the constituent countries of the UK, in general terms when it comes to nests and eggs it is an offence to:

• 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.

What does that mean in practical terms though?

• ‘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 species.

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 some birds (especially some pigeon species) will nest all year round if conditions are right and eg Blackbirds and Robins have been found nesting in January. This is especially true of birds nesting in suburban gardens which because of the ‘heat island effect‘ tend to be warmer than the surrounding countryside.

Species reacting to climate change will undoubtedly lead to earlier nesting as our winters become milder and food availability changes, making the concept of a set ‘season’ more redundant.

• It is not a defence, therefore, to use ‘outside the nesting season’ as an excuse. The law just says that ‘if a nest is being built or contains eggs or young then it is active and therefore protected’, and is not defined by the calendar.

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 blob of mud placed on a nail in a barn 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 sticks the first bit of mud on a wall or nail. There is no ‘They’ve only just started’ excuse in law – when they’ve started to build, then the nest is being built.

• 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.

There is additional protection during the nesting season given to birds (and their nests, eggs and dependent young) listed on what is known as Schedule 1 – there is a full list of Schedule 1 species here. (Note that some additional species are protected on the Isle of Man.)

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 (or of course disturbing a nesting bird of prey, which are all listed as Schedule One species).

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.

The use of netting to stop birds from nesting in a hedge or tree (as in this instance from Powys in spring 2021) has become more common in recent years.

This is because while the Wildlife & Countryside Act 1981 makes it illegal to damage a nest while it is in use (or damage or destroy the eggs inside of it), there is no offence in law of preventing a bird from entering a potential nest site or preventing nesting in the first place.

This means that if developers can prevent birds from starting to build nests they can avoid costly delays to removing hedges or trees, inconvenience, ecological surveys, and potentially a fine for breaking the law. It is of course an offence to catch a wild bird in a net, though, or to damage an egg or nest once it’s being built – anyone seeing a bird trapped in netting should contact the developers and the police immediately.

In 2019 the RSPB offered the following advice and best practice guidelines:

• Think about whether it is really necessary to remove the hedges and trees that are vital for supporting our wildlife;
• Netting should not be the easy alternative. If the work is absolutely necessary, then the use of netting could be avoided by tree and hedge removal being completed outside of the nesting season;
• It is essential developers work with a trained ecologist to ensure appropriate netting is used and is not the type that will catch and hold birds and other wildlife;
• It is also essential that a trained ecologist ensures the correct netting is fitted in a way that wildlife cannot get through or behind the netting and then become trapped;
• It is essential that netting is checked at least once a day (but ideally three times) by a trained ecologist to ensure that no wildlife is caught or that the netting has become defective. If any wildlife is seen to be caught within or trapped behind netting they must be freed immediately and the netting fixed or removed;
• If anyone perceives that the user is aware that wildlife is being caught but has not remedied the situation, then the Police Wildlife Crime Officer should be informed.

So, netting hedges and trees to stop birds nesting is legal, yes – but (especially as many hedge-nesting birds are in serious decline) in our opinion netting hedges or trees to prevent birds nesting is utterly immoral and indefensible.

It is illegal to clean out nest boxes between 1st February and 31st July in case active nests are inside and are disturbed.

 If we have a nest box that we would like to clean out we must wait until the autumn when we can be sure that it is no longer being used.

• Unhatched eggs in a nest box can only be removed legally between September and January (August-January if you’re in Scotland) and must then be disposed of [ > Wild Bird Eggs and the Law].

• In Scotland, General Licence GL13 (2023) says eggs removed from nest boxes must either be destroyed immediately or sent to an authorised authority (e.g. National Museums of Scotland). If an operator intends to give the eggs to an authorised authority, they must do so within three days of taking the eggs from the nest box.

Except for the nests of Golden Eagles and White-tailed Eagles which are protected all year round (as are Osprey nests in England) – an ‘old’ nest that is NOT being used by nesting birds is not protected by law.

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 some species will habitually return to established sites like roof spaces, there is (unfortunately) nothing in law that protects those spaces or the nests in them when they are not occupied.

The RSPB 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 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.

Nest surveys can be an important part of conservation – but must be carried out properly and with regard to the law.

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.

Rules are applied differently in Scotland, but in England there are a series of limited exemptions to the protection given to wild birds and their nests and eggs by the Wildlife and Countryside Act 1981.

These exemptions 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 and do not need to be applied for. 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 Defra (the Department for Environment, Food & Rural Affairs) 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 are not issued to individuals, and they don’t have to even be printed out.

However, the terms of and the species on the General Licences were extensively revised by Defra in 2021 after a court challenge by Wild Justice who successfully argued that licences across the UK were 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 do still allow wild birds to be killed though 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 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“.

A surprisingly  common issue is the farmer or neighbour who cuts a hedge when birds are nesting (or hires someone else to cut it) and insists they’re doing no harm because ‘birds aren’t nesting yet’.

As explained in the FAQ above ‘When do birds nest?’ there is no legally defined nesting season. If a nest is being built or used then a bird is nesting – no matter the time of year.

It is not illegal to simpy disturb a nesting bird (unless it is a Schedule One species) but it is illegal if someone (neighbour, tree-surgeon, gardener etc, it really doesn’t matter) knows or has been informed about the law, knows that nest building is taking place or that there is an active nest in the hedge, and still goes ahead and 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, BUT if they have ‘foresight of consequences’ (as explained in the FAQ above ‘What does the WCA mean in practical terms’) 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 (as so often) there is an exception.

• 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 nesting birds have been disturbed.

The following two paragraphs are copied from an email in response to a 2021 petition asking the government to strengthen laws protecting young animals and birds during tree felling operations.

It essentially repeats much of the information already given here, 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 it’s 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

No. While many birds of prey are Schedule One protected birds, it is not unlawful to photograph them at the nest if the photographer does NOT disturb them.

Disturbing a NESTING bird of prey on Schedule One is an offence though. It is an offence to intentionally or recklessly disturb Schedule One birds whilst they are nest building, at, on or near an active and whilst they have dependent young. 

In June 2024, for example, a 68-year-old man from Neath appeared before Swansea Magistrates Court where he was found guilty and fined more than £1,600 pounds for offences against the Wildlife and Countryside Act 1981 after disturbing a nesting Honey Buzzard. John Paul Haffield visited nest sites of Schedule One protected birds of prey and other species throughout Wales taking photographs of the birds and their young or their eggs within the nest and then offered those photographs for sale online on his own website.

Sometimes, yes!

In most cases people are not intentionally breaking the law. That’s not an excuse, but if it’s safe to do so having 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 cause harm and suffering and break the law.

If that doesn’t work or it’s unsafe to get involved 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.

Wildlife crime is defined as any action which contravenes current legislation governing the protection of the UK’s wild flora and fauna, including species traded in the UK.

Note that wildlife crime does NOT include:

• Incidents involving domestic or companion animals such as dogs (other than dogs being used to hunt mammals), cats, rabbits, domesticated birds, etc.

• Wild animals that have been involved (killed or injured etc) in road traffic accidents.

Road accidents with wild animals do not need to be reported to the police, but note that domestic animals (as well as goats, horses, cattle, asses, mules, sheep and pigs) come within the remit of the Road Traffic Act.
If you have a road accident involving these animals you are required by law to report it to the police. If the wild animal is so badly injured in a road accident that there is no chance of recovery or the animal can not be returned to the wild then he or she may be euthanised, providing there is no appropriate long-term captive or semi-captive accommodation or when treatment would involve undue suffering or distress.

If we come across a wildlife crime scene or a dead bird/object that may be related to a wildlife crime every piece of information is – or might be – important, but it needs to be recorded properly and accurately for the authorities to have a chance of prosecuting an offender.

• Before we do anything else it is very important that we do NOT approach anyone we suspect of committing a crime – they may be violent and/or aggressive. This is especially true of badger baiters and hare coursers who are typically extremely violent. This must be a first priority!

 If we see a wildlife crime taking place (or someone is at risk of getting injured or is being threatened) call 999 immediately.

They will want to know what we can see happening:

• What sort of crime is being committed
• Are any firearms involved
• Could we or the public be in danger

To report a historic crime – that is, a crime that is no longer taking place – use 101 or a local organisation instead.

• If calling the police ask to speak to a Wildlife Crime Officer and make sure to get an Incident Report number.
• Please always follow any advice given and – if they are not available – insist that a Wildlife Crime Officer is made aware of your report.
•  Our options are wider if the event is over, and it may be preferable to talk first to a charity or NGO to get advice. Crimestoppers (an independent charity) can be contacted in complete confidence on 0800 555 111
• When thinking about reporting a crime it’s worth noting that only the police have statutory powers to make an arrest. RSPCA and RSPB investigation officers work with the police for successful prosecutions.

• For offences involving wild birds and their nests or eggs we can also contact RSPB Wildlife Enquiries on 01767 693690. To contact RSPB Investigations directly use the online reporting form or email crime@rspb.org.uk. 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.

Reporting a wildlife crime (or even a suspected wildlife crime) is important for two reasons.

• If the event is still happening it may enable the authorities to catch the criminals ‘in the act’ (which means a higher chance of prosecution),
• and if the event is over a report can still help to build up a more accurate picture of what might be happening in a specific location or across the country as a whole.

Our help is always welcomed

• Whoever we decide to contact we have been assured that our help is welcomed and that if we’re in any doubt that what we’re seeing is a  crime we should report it anyway. Remember, if what we see ‘feels’ wrong, it probably is!

• Even if we’re not sure about what we’re seeing, we can take a photograph and email it to the police or an investigations officer – they are trained to quickly recognise for example when a snare is illegally placed, whether a trap is being used illegally, or whether a crime is being committed or not.
• We may help stop or solve future crimes by helping build up a pattern of behaviour in an area.