Hi Synn,
In answer to your questions (
and in my personal opinion):-
Quote:
Originally Posted by Synn  Say you photograph a lone Avocet feeding in the water, from a hide. It may have a nest somewhere, or chicks it is collecting food for. Are you allowed to photograph it? |
Yes - provided you are not
near its nest or, if you are, you are not disturbing it.
See below for more on the meaning of "near" in this context.
Incidentally, I'm assuming that by "from a hide" you mean a public hide on a nature reserve rather than a portable hide of your own, so that even if you are "near" the nest there is little or no risk of disturbance on entering/exiting the hide.
It's perhaps also worth mentioning that Avocet chicks actually become independent feeders very soon after hatching, so that you're unlikely to see adult birds collecting food for them.
Quote:
Originally Posted by Synn Does taking a photo of any bird on Schedule 1 in the Spring/Summer mean it is illegal, as it could be breeding? |
No - it's only illegal to cause "intentional or reckless" disturbance to a Schedule 1 species (whether for photography or any other purpose) "....
while it is building a nest or is in, on or near a nest containing eggs or young..." or "...
to disturb dependent young of such a bird..."
Photographing a Schedule 1 bird that is not "near" its nest is perfectly legal.
Quote:
Originally Posted by Synn Is there a certain distance allowed away from a possible breeding Schedule 1 bird that you have to be? |
No - the term "
near a nest" is undefined within the legislation. What is a safe distance to avoid disturbance will vary from species to species and will also depend on the geography, vegetation, etc of the local area. However and please forgive me for stating the obvious, if you are near enough to cause actual visible disturbance then you are too near!
Quote:
Originally Posted by Synn This is a photo of a female Peregrine Falcon feeding her chicks, it was taken last year, through a Digi-scope, across a valey from where they were nesting at the Forth of the Clyde, so is this technically illegal to do? |
No - as the photo was taken from "across a valley" (presumably several hundred metres away) and, judging by the normal feeding behaviour it portrays you were apparently causing no disturbance, then in my opinion you did nothing illegal.
For your further information I am repeating a post I made nearly 3 years ago on another thread about photographing Schedule 1 species and which gives more information about some of the issues involved. I hope that you (and others) may find it useful -
"The topic of photographing Schedule 1 birds has been discussed quite a few times here on WAB (and on other birding forums).
The legislation concerned is regarded by some as being badly drafted and by many as being virtually un-policeable. However, in my view the spirit of the law (if not always the meaning) is quite clear.
I can't pretend to remember all the threads concerned but can point you to at least two in which I've been involved and have offered opinions on the subject:-
on page 2 of my 'Kingfisher Diary (with photos)' forum thread -
Kingfisher Diary (with photos)
where I gave the following brief summary of the legislation -
"Strictly speaking, it isn't the act of photographing Kingfishers at or near the nest that is illegal and requires a licence, it's intentionally disturbing one (or any other wild bird listed in Schedule 1 of the Wildlife and Countryside Act 1981 - as amended by the Environmental Protection Act 1990) "...while it is building a nest or is in, on or near a nest containing eggs or young; or disturbing dependent young of such a bird..." and irrespective of whether the act of disturbance is for photography or some other purpose.
Having said that, the licensing provisions featuring within the legislation do give Natural England (formerly English Nature), as "the appropriate authority", the power to grant licences to disturb Schedule 1 protected species for the purpose of photography and for a number of other purposes.
So, in short, it is intentional disturbance that is illegal rather than photography per se (sorry, I can feel myself slipping into lawyer mode ), though clearly if one is found to have disturbed a Schedule 1 protected bird for the purpose of photography and without a licence to do so, that would indeed be an offence.
Thankfully all of that is somewhat academic as I'm pleased to say that I do have a Schedule 1 licence relating to these birds and this specific site. Obtaining such a licence is quite a rigmarole (even for a lawyer ) but I'm grateful for the help and advice given to me by the staff of Natural England's Licensing Service and for the speed with which they processed my licence application."
and also in my 'Barn Owl Diary (with photos)' forum thread -
Barn Owl Diary (with photos)
in which (and in response to a specific question) I offered my personal interpretation of the rules in regard to the question of 'just how near is too near' -
"and finally Dave (pressld2) - thank you for your kind remarks. As to your question - essentially just how near is 'near' within the terms of the legislation? I've done a considerable amount of research on the point and could probably write quite a lengthy legal paper on the subject. However, as it's not my field of legal expertise my comments must not be regarded as legal advice.
As the term 'near' is not defined in the actual legislation then, under the normal rules on interpreting the law, the standard dictionary definition of the word applies. However, as 'near' is a relative term this doesn't really help much. For instance, I often say that I live 'near' Cambridge when in fact I live some 10 miles away. On the other hand, if one tells a small child not to go 'near' a dog that might mean staying just a few feet away
There have been relatively few prosecutions for disturbance offences under the Wildlife and Countryside Act and apparently none of the cases brought before the courts have involved situations in which the issue of whether or not the defendant was 'near' was in dispute - it was sufficiently clear cut to be beyond doubt. Consequently, there is no judicial guidance on the point.
This being so, the question remains open to interpretation in any particular case or situation, though obviously if a case goes to court it will be the court's decision that counts!
I have discussed the matter informally with a member of the RSPB's Investigations Dept and they take the view (rightly in my opinion) that one cannot lay down any set distance, as the potential range in which disturbance of a nesting bird may occur will vary widely depending on such factors as the habitat in which the nest is situated, the species concerned and even the individual characteristics of particular birds within the species.
So far as I have been able to establish the only guidance expressed in specific distances was issued by the Forestry Commission Scotland in their Guidance Note no. 32 of November 2006 - "Forest operations and birds in Scottish forests". This was issued to enable forestry workers to plan and carry out forestry operations in areas in which Schedule 1 species were known to nest or where nests were discovered during the course of operations. In the case of Barn Owls the minimum "safe working distance" to avoid disturbance was put at only 100 -250 metres, but it must be remembered that this applies to a forested area and, in any case, carries no legal weight.
The minimum distance in an open area with perhaps just a few trees and/or field hedges would obviously be much greater and although in your example you say 'two or three fields away' much would depend on the size of the fields
and the general habitat of the area.
In summary, it is impossible to give a simple answer to your question and must come down to common sense and what a reasonable person might do. However, I think that in theory and in the case of Barn Owls nesting in fairly open country it is quite possible that one could be found guilty of a disturbance offence if one's actions disturb a bird hunting even as far as several hundred metres away from the actual nestbox.
I know that's not terribly helpful Dave but I'm afraid it's the best I can come up with and I would certainly recommend that without a Licence you should keep well away from any occupied nestboxes and, of course, should also try to avoid disturbing any hunting Barn Owls whilst attempting to photograph them during the breeding season."
I should emphasise that these are my own personal opinions and that whilst I have been engaged in the legal profession for nearly 23 years now, with extensive training in the interpretation and application of the law (and some experience of advocacy), wildlife law is not my professional field of expertise -it is merely an area of the law in which I have a deep interest; have conducted considerable research, including lengthy discussions with other lawyers (one of whom is a specialist) and various members of the RSPB Investigations Section and other conservation professionals.
I hope this aids your understanding of the issues involved but, at the end of the day, as with all wildlife photography (and whether or not involving a Schedule 1 species) - the wellbeing of the subject must always come first".
Jeff
(Schedule 1 Licence holder for Kingfishers, Barn Owls and Avocets)
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