The management of wild deer in Scotland: Deer Working Group report

Section 13 Damage by Wild Deer

5 Since the Deer (Scotland) Act 1959, Scotland’s deer legislation has always been concerned with the physical damage that wild deer can cause to the public interests covered by the legislation. This type of damage is discussed in the first part of this Section.

6 Over 50 years after the 1959 Act, a new type of damage was introduced into the current Deer (Scotland) Act 1996. The Wildlife and Natural Environment (Scotland) Act 2011 (‘the WANE(S) Act’) amended s.7 of the 1996 Act to include the concept of damage caused to public interests by “steps taken or not taken for the purposes of deer management”. That is discussed in the second part of this Section.

13.1 Physical Damage by Wild Deer

7 Deer have physical impacts on the environments in which they occur, for example, by browsing or grazing and trampling. Under the 1959 Act, the question of whether these impacts might amount to damage only involved the protection of agricultural and forestry interests. Under the 1996 Act, the circumstances in which the impacts of deer might be considered to constitute damage increased with the greater range of interests covered by the regulatory powers in the Act and the evolving values placed on those different interests in public policy.

8 The meaning to be attributed to ‘damage’ by deer in the 1996 Act is not included in s.45 ‘Interpretation’ of the Act or in other Acts dealing with the interpretation of legislation.^[2] This is because the definition of damage is determined by the context in which it is being considered. However, damage by deer in the 1996 Act refers to physical damage from the impacts of deer and can therefore be considered to fit standard dictionary definitions such as “physical harm that impairs the value, usefulness or normal functioning of something”.^[3]

9 The physical impacts of deer can be measured, with the type of measurement depending on the nature of the interest and impacts involved in any situation.^[4] The level of impacts can then be assessed by SNH as the regulator, to determine whether the impacts are judged to amount to damage in considering the use of the powers in the Act. Whether a decision is made to use the powers in any situation will then depend on further factors, including government policies, the local circumstances and the significance of the damage for the type of interest involved. General thresholds for damage cannot be prescriptive as they are context dependent.

10 The 1959 Act, like the Agriculture (Scotland) Act 1948 before it, was intended to protect agriculture and forestry from damage by deer. The regulatory powers in the Act were therefore to protect the interests of the owners and occupiers of agricultural and forestry land, and thus to protect the private interests of those owners and occupiers because safeguarding agriculture and forestry was judged in the public interest. The 1996 Act, when passed, added damage to public safety and natural heritage to the interests covered. Damage to deer welfare and “damage to public interests of a social, economic or environmental nature’’ were then added by the WANE(S) Act in 2011.

11 The regulatory powers are therefore intended to protect the private interests of owners and occupiers involved in the interests covered, because those uses are considered in the public interest, and also to protect interests that might be considered more directly in the public interest.

12 The Deer Commission for Scotland (DCS) started to describe these two types of interests as ‘legitimate public objectives’ and ‘legitimate private objectives’ in 2003/04, when it also decided to interpret ‘damage’ as “a change in state that is regarded as detrimental to legitimate objectives”.^[5] This followed the DCS adopting the policy of focusing its limited resources on ‘priority sites’ the year before.^[6] The intention of that policy was that action by the DCS “should be concentrated where deer are...causing serious detrimental impact to woodlands, agriculture, natural heritage or public safety”.^[7] As described in Section 1 of this Report, public interests now define the carrying capacity of land for wild deer.

13 When the DCS adopted its priority sites policy in 2002/03, it also instigated the production of the Wild Deer Best Practice (WDBP) guides. The current guide on damage still dates from that time and is a much abbreviated version of the section on damage in the DCS’s 2002/03 Annual Report. The guide also includes a number of misleading statements and the Group considers that it should replaced by an updated version. An example is that the guide states without reference that “‘Damage’, as used throughout the Deer Act is then defined as ‘a change in state that is regarded as detrimental to legitimate objectives ’”.^[8] This statement could be taken to imply that this is legal definition, when it was just the DCS’s interpretation of the term.

14 The WDBP guide also only describes ‘legitimate public objectives’ in terms of legally protected sites, habitats and species without regard, for example, to wider environmental concerns, public safety and deer welfare. The ‘legitimate private objectives’ are also just listed as agriculture, woodland and natural heritage. The statement in the guide on legitimate objectives is also followed by the isolated and potentially misleading statement that “In determining damage SNH respects the right of owner/occupiers to determine when damage is occurring and how serious that damage is”.

15 That statement was, however, only the case if the powers in the deer legislation were not involved and the statement was aimed by the DCS at owners and occupiers with the right to shoot deer out of season.^[9] As the DCS also made clear, if an owner or occupier applied for authorisation to shoot deer out of season under s.5(6) of the 1996 Act, then the DCS would assess the situation to see if an authorisation was warranted.^[10] The statement is now redundant given the changes since then to the control of out of season shooting described earlier in Section 5.

16 The Group also considers that the notion of legitimate public and private objectives is a redundant concept. The term ‘legitimate’ was used to refer to interests in the restricted list of land use interests that could be protected from damage by deer under the legislation at the time. Now, any public interest can be protected because the 1996 Act covers public interests of an economic, social or environmental nature. Similarly, any private land use activity can be protected if that activity is judged by SNH to contribute to public interests.

17 While the Code of Practice for Deer Management (which came into effect on 1 January 2012) still refers to legitimate objectives in the context of damage by deer, there do not seem to be any references to legitimate objectives in more recent documents such as ‘Scotland’s Wild Deer: A National Approach’ (WDNA) and SNH’s 2016 report on deer management to the Scottish Government. However, the Group considers the paragraphs in those documents describing public and private interests still lack clarity, in terms of the scope of the interests that can be protected from damage by deer under the 1996 Act.

18 The Working Group recommends that Scottish Natural Heritage should develop fuller statements of the public and private land use interests that can be protected under the Deer (Scotland) Act 1996, and that Scottish Natural Heritage should also ensure that the Wild Deer Best Practice guidance on damage is replaced.

19 Another concern is the legacy of the ‘priority sites’ policy adopted by the DCS from 2002/03. While prioritising the most pressing cases of damage by deer clearly makes sense, the policy rapidly became narrowed to the protection of designated natural heritage sites where there is a legal obligation to safeguard them. While such sites need to be protected from damage, the continued high degree of focus on this approach by SNH is major factor in the relative lack of adequate information available on damage to other interests by deer outside designated sites in the rest of Scotland, as described in the following Sections in this Part of the Report.

20 The high degree of focus on designated natural heritage sites can also create the impression that the deer legislation is all about asserting a public interest over private land. However, a central role of the legislation is to protect the land uses of owners and occupiers that contribute to the public interest, from physical damage by deer coming on to their land.

21 While there is an expectation implicit in the deer legislation that owners and occupiers will take reasonable steps to control the number of deer on their land, the legislation is intended to provide further protection through the use of authorisations or regulatory powers where reasonable steps by owners and occupiers are not enough to protect their land use activities from damage by deer.

22 The 1996 Act used to contain the distinction that, while ‘damage’ was required for an owner/occupier to be granted an authorisation to control deer numbers on their land, ‘serious damage’ was required for SNH to be able to use its other regulatory powers (ss.8 and 10) to intervene on the land of an owner to control deer numbers. This distinction, which had not been in the 1959 Act, has since been removed from the 1996 Act by the WANE(S) Act. This change in 2011 was to give consistency in the Act and to remove the ambiguity of what might constitute serious damage as opposed to damage.

23 Complaints of damage might be raised by owners or occupiers, by SNH or by a third party, such as a private individual.^[11] The Red Deer Commission used to encourage complaints as part of fulfilling its responsibilities, for example, with its 1986 booklet ‘Help for those suffering damage by deer’. While the DCS clarified that complaints could come from third parties, its subsequent focus on designated natural heritage sites meant the DCS had limited interest in complaints of damage elsewhere. SNH has continued this approach and at least some owners and occupiers are discouraged from complaining about damage by deer, because they have limited expectation that SNH will take action.^[12]

24 For owners and occupiers who are taking reasonable steps to control deer on their land and yet still experiencing damage, this typically arises due to deer movement from neighbouring lands. The source of those deer can be considered in very large measure to be an owner who has, in the words of s.44 of the 1948 Agriculture (Scotland) Act, “failed to take reasonable steps to control the number of deer on his land”.

25 This deer movement might result from the displacement or dispersal of deer. Displacement might follow a particular event, where an owner has failed to take ‘reasonable steps’. Examples might include an owner enclosing a significant area of open hill with deer fencing to establish woodland or protect a grouse moor, without first carrying out a reduction cull of the deer that had been using the land. The same can apply where an owner clear fells an area of forestry without reducing the deer first. Displacement can also happen if an owner carries out a culling programme in an area at an intensity that causes deer movement out of the area.

26 The Group considers, however, that the main cause of deer movement on to the land of owners and occupiers is under-culling on other land in their area. Deer are mobile animals that move around their local range, for example, for better feeding or shelter. However, under-culling tends to result in the density of deer increasing and a net dispersal of deer to surrounding areas.

27 An illustration of the widespread nature of under-culling and dispersal is the scale of deer movement on to National Forest Estate (NFE) covering 9% of Scotland’s land area, where “long term monitoring has shown that in some places well over 50% of the annual cull comes from deer which have moved into the NFE from adjacent land”.^[13] Another example discussed in Section 24, is the difficulty for SNH in achieving reductions in red deer numbers in open hill areas covered by s.7 Control Agreements, due to red deer moving into the area as a result of the relatively high densities in surrounding areas.

28 The Group considers that there is a general pattern in a wide range of local areas in Scotland, where under-culling on some properties results in neighbouring owners and occupiers having to contend on a regular basis with deer from those properties. This situation might be considered to have similarities with the ecological theory of ‘source and sink’ populations, with deer dispersing from the source area to the sink areas.^[14]

29 The expectation implicit in the deer legislation and made explicitly in public policy is, firstly, that all owners and occupiers of land where wild deer occur will take reasonable steps to control the number of deer on their land, if it is safe and practical to do so. The expectation is, secondly, that SNH as the regulator will consider the use of the regulatory powers in the 1996 Act where a lack of control is leading to damage to interests covered by those powers.

30 In situations where an owner is not carrying out adequate culls, the use of persuasion by SNH rather than compulsory powers might be seen a preferable outcome. However, as discussed later in Section 26, the scope for persuasion as part of an effective system of regulation relies on a credible expectation that SNH will use its powers to prevent damage or further damage when necessary. The Group is not convinced that SNH passes that test, despite Scottish Government instructions to SNH to ensure that it uses “the full range of enforcement powers at its disposal” where necessary.^[15]

31 Even in an effective system of deer management that safeguards public interests, there will still always be examples where the impacts of wild deer in a particular area are considered to have an unacceptable level of damage. However, at present, the Group considers that, while the apparent levels of damage by wild deer in Scotland might not be described as out of control, the levels cannot be described as under control.

32 SNH might cite the limited resources that it can commit to deer management, given its budget and the wide-ranging nature of its remit. However, the Group considers that there is an inherent responsibility on the public authority implementing Scotland’s deer legislation, to have the capacity to respond to complaints of damage by deer and to take effective action where appropriate.

33 The Working Group recommends that the Scottish Government should ensure that Scottish Natural Heritage has the capacity to encourage complaints of unacceptable levels of damage by wild deer and to respond by taking effective action where warranted to reduce the damage.

13.2 Damage by Deer Management

34 Over 50 years after the 1959 Act, a new type of damage was introduced into the current Deer (Scotland) Act 1996. In 2011, the WANE(S) Act amended s.7(1) of the 1996 Act to include damage caused to public interests by “steps taken or not taken for the purposes of deer management”. The inclusion of this type of damage in s.7 means that it can form the basis of a compulsory s.8 Control Scheme, while the Land Reform (Scotland) Act 2016 included the same phrase in the new s.6A on deer management plans.

35 Damage by deer can be considered generally to result from steps taken or not taken for the purposes of deer management. However, the “or” in s.7(1)(a) contrasts damage by deer with damage caused by “steps taken or not taken for the purposes of deer management”. The relevant part of s.7(1) is shown in Figure 29.

36 Despite the significance of adding a new type of damage to the 1996 Act, the Group searched in vain for any record of the origin and intention of introducing it into the Act. The phrase was already included in the WANE(S) Bill at Stage 1 of the Scottish Parliament’s legislative process, but it had not been mentioned in the Scottish Government’s consultation paper prior to the Bill nor apparently in any of the responses received.^[16]

Source: legislation.gov.uk

37 There also appears to have been no mention at all of the phrase during the entire Parliamentary process from Stage 1 to the passing of the WANE(S) Act. There were also no statements by people that Courts might consider ‘relevant persons’ to assist in the interpretation of the phrase if a disputed s.8 Control Scheme was contested in the Scottish Land Court.

38 SNH also confirmed to the Group that it is not aware of any official record of why the phrase was included in the WANE(S) Act and thus in the 1996 Act.^[17] SNH also confirmed the Group’s understanding that there is no relationship between the phrase and “the Seven Steps” in the Code of Practice on Deer Management that are to be taken by owners and occupiers to follow the voluntary code.^[18]

39 The interpretation and application of damage caused directly by “steps taken or not taken...” in s.7(1) is not immediately clear. The actions or inaction of one land owner might mean deer cause or are likely to cause damage to another owner or occupier’s interests under s.7(1)(a)(i) and (ii). However, if it is the owner’s actions rather than deer that are directly causing damage to those interests, it would be other laws that the owner or occupier suffering the damage would turn to rather than the Deer Act.

40 The Group’s investigations and inquiries eventually allowed the Group to develop an informal understanding of the origin and intention of adding “steps taken or not...” to s.7. Apparently, during the period before the WANE(S) Bill was published, the Scottish Government’s increased focus on trying to improve deer management resulted in concerns amongst some Highland estate owners that significantly increased culls in some areas might cause damage to their red deer stalking business interests.

41 The Group’s understanding is that the Scottish Government then included the “steps taken or not taken...” provision as reassurance, with the wording provided by solicitors to meet the intent of being able to limit the number of deer being culled in some situations to protect economic or social interests. The provision would therefore be implemented through s.7(1)(a)(ia) “damage to public interests of an economic, social or environmental nature”.

42 The implication is that, for example, if one or more estate owners in an area decided to significantly reduce the density of red deer on their land and this impacted on the deer hunting opportunities on one or more neighbouring estates, such that it jeopardised the jobs of the estate deer stalkers, the provision might be used to protect the public interest in jobs in remote rural areas.

43 SNH appears to have interpreted the provision in this way and the Group’s informal understanding is that at least one estate in the northern Highlands has approached SNH about the information required to consider the use of the provision.^[19] SNH has, after some initial work for SNH by the James Hutton Institute on how such a situation might be assessed for the possible use of the provision in such a situation, produced draft internal guidance on ‘Assessing the Economic Impacts of Deer Management’.

44 The Group considers that the implementation of the provision in the type of situation mentioned above is fraught with difficulty. The relatively lengthy questionnaire in SNH’s draft guidance illustrates some of the challenges in trying to weigh the interests of two different estate owners in how they decide respectively to manage the wild deer that occur on their land. This is particularly the case if the use of the provision in s.7 did not produce results and the next stage was a compulsory s.8 Control Scheme that could be challenged in Court.

45 There is no entitlement to be able to shoot a certain number of wild deer on a particular property. Land owners may have adapt how they manage deer populations in many circumstances due to changes on the land of a neighbouring property and, as deer often move across property boundaries, land uses changes happen all the time that alter the number of deer that might be shot on a property. Examples might include a neighbouring owner either deer fencing their land or substantially reducing the density of deer on their land for forestry purposes.

46 There are also questions over how SNH might enforce the use of the “steps taken or not taken...” provision in practice, if there was not a voluntary agreement in place under s.7 and a compulsory s.8 Control Scheme was required. Without a national licence system where owners need permission from SNH for the number of deer they shoot and a maximum number could be set, would SNH seek to impose an annual quota on a land owner for the number of deer they can shoot?

47 The Group’s view is that the addition of “steps taken or not taken...” in s.7 was a poorly considered amendment and should be repealed, along with the use of the phrase in s.6A. However, the Group notes that the provision did for the first time give SNH the power in theory at least to reduce deer culls rather than just increase them. The Group considers that an effective system of deer management should have such a power in the legislation, but not through the current provision in s.7.

48 The Group’s view is that if SNH is to have the power to reduce deer control on a property, it should be through a separate section in the Deer Act and be based on careful consideration of the terms of the measure and its potential enforcement. However, examples of where such a power might be used at present in Scotland are not easy to suggest. The public authorities responsible for deer management in many European countries have the power to limit culls through a deer hunting licence system.^[20]

49 The Working Group recommends that the phrase “or steps taken or not taken for the purposes of deer management” should be repealed from sections 6A(2) and 7(1) of the Deer (Scotland) Act 1996, and that consideration might be given to whether an appropriately termed and practical power for Scottish Natural Heritage to reduce deer control on a property might be introduced through a new section in that Act.

Footnotes

2 Interpretation Act 1978; Interpretation and Legislative Reform (Scotland) Act 2010.

3 Oxford Dictionary definition.

4 For example, using methods of assessing impacts in the Wild Deer Best Practice guides.

5 DCS Annual Report, 2003/04, p.32.

6 DCS Annual Report, 2002/03.

7 DCS Annual Report, 2002/03, p.7.

8 Wild Deer Best Practice guide, ‘Damage definition’.

9 DCS Annual Report, 2003/04.

10 DCS Annual Report, 2003/04

11 DCS Annual Report, 2003/04.

12 See Section 16.

13 Campbell D., Marchbank, M., Watson, M. and Quin, S. (2017). Trends in woodland deer abundance across Scotland: 2001-2016. SNH Commissioned Report No. 948.

14 For example, Wäber, KJ., Spencer, J. and Dolman, P.M. (2013). Achieving landscape-scale deer management for biodiversity conservation: The need to consider sources and sinks. Journal of Wildlife Management, 77(4), pp.726-736.

15 Scottish Government, ‘Strengthening deer management’ press statement, 29 June 2017.

16 While the consultation paper did not include the phrase, Question 7 in the consultation asked about the proposals being made to extend SNH’s powers to intervene. However, there is no reference to the phrase in the Scottish Government analysis of the responses received.

17 SNH Information Response 55.

18 SNH (2011). Code of Practice on Deer Management, p.3.

19 SNH correspondence with DWG, 14 August 2019.

20 Putman, R. (2011). A review of the various legal and administrative systems governing management of large herbivores in Europe. In: Putman, R., Apollonio, M. and Andersen, R. (eds.) Ungulate Management in Europe: Problems and Practices. Cambridge University Press, pp. 54-79.