Water voles and the law
Water Vole nibbling waterweed
Andrew Parkinson
Since 1998 the water vole has received legal protection through its inclusion on Schedule 5 of the Wildlife & Countryside Act 1981 (as amended), in respect of Section 9(4) only. This means that the water vole’s places of shelter or protection are protected, but not the animals themselves. Recently the Nature Conservation (Scotland) Act 2004 enhanced this protection by inclusion of the term ‘recklessly’ in the offences quoted below. Furthermore, the current partial protection afforded this species is under wider review and may be extended in future. At present it is an offence to intentionally or recklessly
- Damage, destroy or obstruct access to any structure or place which water voles use for shelter or protection, and;
- Disturb water voles while they are using such a place.
The Law in Practice
There are also certain limited scenarios where specific defences can apply. There is a statutory defence against prosecution if it can be demonstrated that:
- “the unlawful act was the incidental result of a lawful operation or other activity” and that;
- “the person who carried out the lawful operation or other activity took reasonable precautions for the purpose of avoiding carrying out the unlawful act” or that the person;
- “ did not foresee, and could not reasonably have foreseen, that the unlawful act would be an incidental result of the carrying out of the lawful operation or other activity”.
This defence only applies if the person stops causing any further illegal
actions as soon as practically possible once he or she realises they are occurring.
An example of the circumstances where this defence might be applicable would
be a situation in which a developer is working in an area that was considered
to have no water vole interest (based on the results of a previously commissioned
field survey), but inadvertently damages a water vole burrow and subsequently
stops work as soon as this is realised 1.
1 This explanation should be regarded only as a guide to the law. For further details reference should be made to the complete copies of the relevant acts.