Guidance - Accompanying notes for Schedule 1 bird licences

Published: 2018

General

All wild birds are protected under the Wildlife and Countryside Act 1981 (as amended). However, due to their rarity, vulnerability or sensitivity to disturbance, birds listed on Schedule 1 of the Act are afforded even greater protection. This includes an offence of intentionally or recklessly disturbing Schedule 1 species whilst they are building a nest or are in, on or near a nest containing eggs or young. It is also an offence to intentionally or recklessly disturb the dependent young of such a bird.  A Licence issued by NatureScot to monitor Schedule 1 birds permits actions that could otherwise constitute an offence under the Act.

Licences are issued to named individuals, permitting specific actions, in defined geographical areas and for a set time period. Terms and conditions are attached to the Licence to ensure that work is undertaken in such a way so as to avoid undue disturbance to wild birds and to avoid any actions that may endanger breeding success. The licence holder can have accredited agents or assistants named on their licence, or can have a condition stating that they may be accompanied by a specified number of assistants. An agent can undertake the actions permitted by the licence independently of the licence holder. Assistants may undertake the named actions but can only do so in the presence of the licence holder. The licence holder is responsible for the actions of any agents or assistants. Licence holders should only take persons with them on site visits if they are covered to do so by their licence.

It is a condition of each licence that the licensee must carry a copy of the Licence while engaged in work covered by it, and should produce it to any police officer, authorised person, or official of NatureScot on demand. Failure to comply with the terms of a licence could constitute an offence.

Licence holders and any accredited agents or assistants are expected at all times to exercise the utmost care while engaged in the activities authorised by the licence and the welfare of the birds, their eggs and young should be of the highest priority.

Furthermore, the licence holder should be aware that whilst the licence permits actions that could otherwise constitute an offence under the Wildlife and Countryside Act, a licence does not and can not confer any other right or permission under any other piece of legislation. This includes access rights.

This document gives an overview of the general principles to minimise disturbance to species surveyed and on how to exercise access rights responsibly. It is not intended as a comprehensive reference document because circumstances and considerations will vary with the type of work being carried out and the species being monitored. References are provided for further information.

Minimising Disturbance

Licences can be issued by NatureScot to permit disturbance of Schedule 1 birds for a number of purposes, including science, research and education and for ringing birds. NatureScot aims to balance the legitimate requirements of scientific study or research with the need to keep disturbance to an acceptable level so that there is no impact on breeding success or survival of the birds in question.

The precise methodology used for undertaking monitoring work will depend on the species being monitored. For raptor monitoring, the appropriate species account in ‘Raptors: A field guide to survey and monitoring’ (Hardey et al., 2006) should be consulted for guidance on technique, timing and frequency of visits to nests and territories for each species, and, if ringing, ‘The Ringers Manual’ (BTO, 2001). However, general principles that should be adhered to in all Schedule 1 surveys and monitoring are given below:

• Exercise extreme caution at all times and particularly just prior to and during laying and during early incubation.
• Only approach as closely as is necessary to obtain the required information.
• Minimise disturbance of vegetation around nest sites
• Be discrete
• Try to avoiding startling birds and replace any eggs or young that may have been dislodged if an adult has left the nest.
• If carrying out watches from a distance, retreat if birds show alarm behaviour or if they leave a nest site or suspected nest site. Watches should be made form a safe distance that does not illicit alarm behaviour.
• Do not disturb birds in adverse weather (cold, wet or excessively hot)
• Ensure that duration, number and frequency of visits to a nest are kept to the minimum required to gather the required information.

Ensuring compliance with the Scottish Outdoor Access Code

Part 1 of the Land Reform (Scotland) Act 2003 gives everyone statutory access rights to most land and inland water. People only have these rights if they exercise them responsibly by respecting people’s privacy, safety and livelihoods, and Scotland’s environment. Equally, land managers have to manage their land and water responsibly in relation to access rights. As such, it is the responsibility of the licence holder to ensure that, whilst carrying out work permitted under licence, they exercise their access rights responsibly.

The Scottish Outdoor Access Code was approved by the Scottish Parliament on 1st July 2004. It is based upon 3 main principles:

• Respect the interests of other people
• Care for the environment
• Take responsibility for your own actions

The code states that you are exercising access rights responsibly if you:

• do not interfere unreasonably with the rights of other people; and
• act lawfully and reasonably, and take proper account of the interests of others and of the features of the land.

Access rights extend to individuals undertaking surveys of the natural heritage where these surveys have a recreational or educational purpose within the meaning of the legislation. The code offers the following advice on undertaking surveys, and responsible behaviour on the part of the surveyor and the land manager:

Responsible Behaviour By The Public

Watching and recording wildlife is a popular activity and falls within access rights. If you wish to intensively survey an area, make frequent repeat visits or use any survey equipment, consult the relevant land manager(s) to let them know of your intentions. Take extra care not to disturb the wildlife you are watching.

Responsible Behaviour By Land Managers

Wherever possible, co-operate with people who wish to carry out a survey and allow the taking of small samples where this would not cause any damage.

The Access Code is not an authoritative statement of the law; it provides guidance on responsible behaviour for recreational users, and on responsible land management in relation to the new rights. The detailed guidance in the Code should help to ensure that few problems arise. However, if there is a problem, the Code is expected to be a reference point for determining whether a person has acted responsibly. For example, where a dispute cannot be resolved and is referred to the Sheriff for determination, the Sheriff will consider whether the guidance in the Code has been disregarded by any of the parties. In this sense, the Code may be said to have evidential status. Failure to comply with the Code, however, is not, in itself, an offence. The full code can be found on the Scottish Outdoor Access Code website.

NatureScot recommends that, as good practice, and wherever possible, licence holders should observe the courtesy of informing landowners of their intentions with regard to carrying out surveys on their land and, if practicable, to liaise with land managers about the timing and location of visits, and the outcomes of their work. 

Schedule 1 Disturbance Licences - New Condition and Explanatory Notes - March 2025

Background

NatureScot has introduced a new condition to Schedule 1 Bird Disturbance licences. This condition has been developed in support of our Shared Approach to Wildlife Management, the primary focus of which is openness and transparency by ensuring landowners/managers are aware of licensed Schedule 1 Bird Disturbance activity on land they own or manage. This will include the level of activity and a general timeframe of when it will take place. 

This formalises existing good practice for notifying landowners of licensed activity, relating to the disturbance of Schedule 1 species, which is already undertaken by many licence holders permit holders or agents working under organisational licences. It will allow NatureScot to support the development of better relationships between landowners/managers and those undertaking the licenced activity where this does not currently exist.

The condition reads as follows: 

• The licence holder (or permit holder or agent, as appropriate) should notify the relevant landowner(s) or land manager(s), of planned licensed activity each year, including the expected timeframe of the activity and the likely number of visits planned.
• Where there is explicit agreement between the licence holder, permit holder, or agent and the landowner/ manager the notification can be extended unless there is a material change, such as change of ownership or licence holder.
• The notification must be in advance of any licensed activity.
• Where it is not reasonably practicable to notify the Landowner(s) or Land manager(s) of planned activity, the licence holder, permit holder, or agent must notify NatureScot and include the reason for not being able to contact the landowner/ land manager directly.
• Evidence of the notification to the landowner(s) or land manager(s) is to be made in a manner which can be provided to NatureScot if requested. 

How does NatureScot define “should” in the condition?

NatureScot considers that the licence holder, permit holder, or agent is required to carry out this action to avoid the risk of breaching their licence conditions, unless the action is deemed to not be “reasonably practicable” in which case the licence holder must notify NatureScot. 

General Monitoring not involving disturbance of Sch 1 species. 

No notification is required for general monitoring, notification is only for licensed Schedule 1 disturbance activities. 

How do I notify?

Notification can be verbal or in writing, evidence of notification must be recorded.  The following information must be provided within the notification to meet the terms of the condition: 

• That activity under a Schedule 1 disturbance licence may take place on the relevant land;
• The licence number the activity is operating under;
• The timeframe within which the activity will be taking place;
• The estimated number of visits throughout that timeframe;

Where a licence holder, permit holder, or agent has concerns about sending advance notification of their presence, they must notify NatureScot, at [email protected], and state the reason for this and provide details.

Am I asking for access permission or just notifying the landowner?

This condition relates to licence holders, permit holders, or agents notifying landowners/managers prior to carrying out their licensed activity; it is not a request and there is no requirement to secure access permission. In accordance with the Land Reform Scotland Act 2003, access to land to carry out non-commercial monitoring work under licence does not require access permission. 

What does NatureScot consider as being reasonably practicable to identify landowners/managers?

In many cases contact details will already be known by licence holders, permit holders, or agents and existing relations and contacts will have been made.

 Where details are not already known, NatureScot will accept that where contact details for the Landowner or Land Manager (or another publicly designated representative, or general contact details for the relevant estate) are not published online, as a reason as to why contact cannot be made. If this is the case, then NatureScot must be notified. 

We consider that if the licence holder, permit holder, or agent has made the above reasonable efforts to identify the correct landowner or manager and they cannot be identified, or there are other legitimate reasons why the licence holder, permit holder, or agent deems it not reasonable to notify the land owner or manager, then they must provide a detailed explanation to the NatureScot licensing team ([email protected]). 

It is in the best interest of landowners/managers to make their details available to enable the workability of this condition. Scottish Land and Estates and the Scottish Gamekeepers Association have offered to assist with providing details of their members on request. However, licence holders, permit holders, or agents are not obligated to undertake this.

Will I have to provide personal information?

In line with the UK General Data Protection Regulations (UK GDPR) the licence holder, permit holder, or agent is not required to share any personal data with the landowner/manager. Licence holders, permit holders, or agents can use generic, organisational email addresses or withhold telephone numbers to prevent this. Recorded delivery postal notification can also be used. 

Will I have to share sensitive environmental data?

There is no requirement to share with the landowner/ manager any data collected during monitoring’ this includes the location of any nest or roost sites, or the species being monitored. The notification is purely to advise the landowner/manager that licenced disturbance to Schedule 1 species may occur on their land. We would however encourage the fostering of good working relationships and the sharing of appropriate levels of information which supports conservation management for Schedule 1 species.

Where the licence holder, permit holder, or agent is comfortable doing so, release of data should be in accordance with the spatial resolutions set out in NatureScot’s Sensitive Species Policy.

Do I have to notify each time I want to visit?

There is no need to notify every time you will be visiting. The notification should strike a balance between informing landowners/managers that licenced disturbance activity may be occurring on their land, without creating an unreasonable administrative burden for licence holders, permit holders, or agents. By providing details of a time frame over which the visits are likely to take place (i.e. intending to visit 3 or 4 times between month X and month Y) will allow for multiple visits and take account of the need for flexibility due to weather conditions etc. 

Does the new condition apply to everyone?

The condition only applies to all activity carried out under a licence to disturb species listed on Schedule 1 of the Wildlife and Countryside Act 1981 (as amended). The requirement to notify landowners/managers does not apply to licences issued for any other purpose or for general monitoring. 

How will NatureScot investigate complaints against Licence Holders?

Any reports of breaches of licence conditions or complaints against licence holders, permit holders, or agents will be considered by our Compliance Monitoring Team.  The approach taken is as follows:

• Details of the complaint including evidence logged by NatureScot Compliance Team.
• Compliance Team notify Licence Holder, Permit Holder, or Agent in writing, providing a summary of the evidence submitted.
• Licence Holder, Permit Holder, or Agent has 14 days to provide a response to the complaint, including providing any evidence they have.
• Compliance Team notify Licensing Manager of complaint and the response and a recommended course of action.
• The Licensing Manager will consider all evidence and decide what action is required.
• Appeals to licensing decisions will be handled through the organisational complaint’s procedure. 

Vexations complaints against individual licence holders, permit holders, or agents will be treated seriously.

What should I do if I suspect a Wildlife Crime?

We acknowledge that monitoring of Schedule 1 species can and has resulted in detection of potential wildlife crime. Where the licence holder, permit holder, or agent has concerns about a possible wildlife crime incident, they should notify Police Scotland at the earliest opportunity. There is no requirement to notify the landowner/manager.

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