RAUK - Archived Forum - Tony Phelpsos article in British Wildlife

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Tony Phelpsos article in British Wildlife:

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DianeMaxfield
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Joined: 05 Apr 2004
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Posted: 02 Nov 2004

According to a letter in British Wildlife Vol 16 Oct 2004 from Paul Cantwell, National Wildlife Management Team, DEFRA, Tony Phelps stated on page 326 that "... snake hibernation areas have the same protection as Badger Meles meles setts or bat collonies". Apparently not "... all snake hibernation areas are given the same protection from disturbance, damage or destruction, as this level of protection only currently applies to the Smooth Snake."

Any comments from anyone else about this? I suppose Mr Cantwell is right (although I hate to think my darling husband might actually have made a mistake!)

Also, I thought Tony might actually read this and it's easier to contact him this way now he is "up country" somewhere in South Africa.


Diane Maxfield Phelps
GemmaJF
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Posted: 03 Nov 2004

The statement is correct that only the smooth snake has any direct form of habitat protection under the WCA.

I'm not so sure though that the term 'reckless killing' introduced by the CROW act couldn't be interpreted as including death of adder resident in a hibernacula that was destroyed willfully, when for instance there was every reason to expect adder were in residence as a result of recording, and the relevant management team had be informed of the situation.

I would be interested in hearing others opinions on this subject, though assume until a test case went through the courts it would remain conjecture.


Gemma Fairchild, Independent Ecological Consultant
Matt Harris
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Posted: 05 Nov 2004
Schedule 12 of the CRoW Act only amends Sec 9(4)of the WCA 1981 to include the word 'recklessly'. Sec 9(4) relates only to the damage, destruction or obstruction of a place of shelter or protection of a schedule 5 animal as well as disturbing that animal whilst occupying such a structure. It does not relate to killing or injury

Adders and grass snakes are only protected by Sec 9(1) (killing etc)and 9(5) (trade etc), so as Gemma says, only Smooth Snakes receive any form of habitat protection.
Gwent Amphibian and Reptile Group (GARG)
herpetologic2
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Posted: 05 Nov 2004

 

Well it may be based on the view that any works within an area where reptiles are known to exist - say a hibernation area (road verge, seawall etc) then that activity if found to kill or injure reptiles will be considered an offence -

My personal thoughts is that the passage which Tony wrote should have read that snake hibernation areas (especially the adder) should have the same protection as badger setts and bat roosts.

Lets face it the protection badgers have is related to persecution and it not related to their conservation status - they are quite well off being more 'common' than the red fox which is declining

Adder are still being persecuted and one of the ways people do this is to raid hibernacula in the spring so there is a need to protect the species in this way - also the hibernation areas are being found to be an important part of the ecology of snakes and reptiles

The adder needs more protection definitely!!!!

 


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Matt Harris
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Posted: 05 Nov 2004
Well it may be based on the view that any works within an area where reptiles are known to exist - say a hibernation area (road verge, seawall etc) then that activity if found to kill or injure reptiles will be considered an offence -

For adders and grass snakes, you would have to show that the offending act was intentional. Clearly if the reason for the act was other than intentionally to kill or injure the snakes (i.e, they intended to clear the scrub or brush piles etc), then there would be no case - it's very difficult to prove what was in the mind of the person at the time they did something.

For smooth snakes, it's illegal intentionally or recklessly to disturb their place of shelter etc. It's also illegal deliberately to do all these things as well, under the Habitats Regs. Just what exactly is the difference between 'intentionally' and 'deliberately' you tell me.

Personally, I think that snakes need more protection than a lot of things, including perhaps GCNs.
Gwent Amphibian and Reptile Group (GARG)
herpetologic2
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Posted: 05 Nov 2004

Matt

that is absolutely right

but if works were carried out on a site where it was known to support reptiles and no attempt was made of reasonably avoiding the 'killing or injury' of reptiles ie a translocation, re timing of works, habitat manipulation prior to work etc and reptiles were found dead and injured then there is a case -

It is often cited that reptile deaths as a result of habitat management, undertaken on SSSI's for instance, is an incidental result of a lawful activity..... but they seem to leave out that it had to be 'reasonably avoided' under the Wildlife and Countryside act -

so if dead animals are found after grass cutting, scrub clearance and there was evidence that the contractors or their employers knew that reptiles were present then there is a case for a prosecution -

I believe that this is currently being tested in court cases....we will have to wait and see

 

Jon

 


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Robert V
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Posted: 07 Nov 2004

 

Thats a very interesting point Jon. So what would happen if say, the Corporation of London carried out extensive scrub clearance to an area when they had been previously notified that the area contained Adders and Grass Snakes? Could they be prosecuted and if so, by whom?  R


RobV
herpetologic2
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Posted: 08 Nov 2004

 

Well this depends on whether the evidence is present and there is the will to prosecute from the police and CPS - quite often I hear the certain organisations are a law into themselves and these aren't powerful rich development companies if you know what I mean.

Scrub clearance has occurred on sites in the control of the corporation and adders were killed - previously there was no attempt to discourage adders from the area to be disturbed and so the killing of even a single adder without an attempt to prevent them getting in the way is an offence under the Wildlife and Countryside Act - lawful operation and reasonably avoided etc

It becomes increasingly difficult when the wildlife organisations 'break the law' or carry out tasks without proper surveys and then expect the developers to spend thousands of pounds on mitigation before they build houses, roads etc

The developers find out about different projects around the country and often cite them as a reason why they shouldn't waste money and time on mitigation - if it is okay for them then it is okay for us

Wildlife organisations NGO's etc should set the example - we not talking about putting up expensive reptile fencing (well perhaps a little) we are talking about surveying sites prior to management works, using habitat manipulation to prevent reptiles from colonising clearance areas - highlighting important scrub patches which are used for basking, hibernation etc so the ecology of the animals are protected and of course monitoring afterwards

Can it be done?

J


Vice Chair of ARG UK - self employed consultant -
visit ARG UK & Alresford Wildlife
Matt Harris
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Posted: 08 Nov 2004
It is often cited that reptile deaths as a result of habitat management, undertaken on SSSI's for instance, is an incidental result of a lawful activity..... but they seem to leave out that it had to be 'reasonably avoided' under the Wildlife and Countryside act

Are you suggesting that being able to reasonably avoid the killing/injury of snakes when carrying out habitat management, but failing to do so, is equivalent to intentionally killing/injuring them. This seems a bit tenuous to me, but as you say hopefully there will be some guidance through caselaw.

Gwent Amphibian and Reptile Group (GARG)

- Tony Phelpsos article in British Wildlife

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