2

view, the purpose of this letter is to comply with the Judicial Review Pre
Action Protocol. We also want to give Natural England an opportunity to
reconsider their position and respond in a way that either makes the
proposed claim unnecessary, or narrows what is in dispute, or at least
makes their position clearer.

We thus ask that you confirm that the licences granted will be revoked,
alternatively that they will be amended to preclude all culling, including
in particular by free shooting.

We ask that Natural England prevent any steps being taken to give effect
to any cull under the licences granted and, in any event, agree by return
to postpone any cull whilst they consider the legal position and respond
to this letter in line with their duties under the pre-action protocol for
judicial review. We would be grateful for your substantive reply by 5
November. However, we would be grateful to a reply by 10pm this
evening on the matters which may necessitate injunctive relief so that
the court has a full picture if it is necessary to make an out of hours
application.

The parties

Badger Trust
Badger Trust is a charity which promotes the conservation and welfare
of badgers and the protection of their setts and habitats for the public
benefit. For over thirty years, it has provided the leading voice for
badgers and represents and supports around 60 local voluntary badger
groups and many individual members. Badger Trust provides expert
advice on all badger issues and works closely with government, the
police and other conservation and welfare organisations.
Badger Trust agrees that measures need to be taken to reduce the
incidence of bTB, including such minor contribution to it as is made by
badgers. Such measures properly include improvements in farm
management techniques and controls on the transporting of cattle from
area to area (which otherwise spreads the disease entirely
independently of badgers) and the vaccination of badgers (and, shortly,
cattle) against TB2.
It is accepted by DEFRA that the proposed cull will not prevent but
rather will initially prompt the spread of bTB - at enormous, and
escalating expense to the tax payer and farmers. In the best case
scenario, only after 9 years culling, might one expect a 12 to 16% slow

2
There is no doubt that vaccination can prevent badgers from becoming infected with
TB. Indeed, the Government has proposed its use to prevent the spread of disease and
mitigate perturbation in the licensed areas. Field trials on the use of the badger TB
vaccines are currently being undertaken at a number of locations around the country.
Meanwhile oral bait TB vaccines for badgers, and potentially bTB vaccines for cattle (and
associated DIVA tests which can distinguish infected from vaccinated cattle) are being
developed.
 3

down in new incidents of bTB if all the RBCT criteria are followed. Thus,
no significant benefit will be noted for many years. In the meantime, in
addition to existing cattle-focussed proven alternatives to culling, cattle
vaccinations are likely to be licensed and cheaper oral vaccinations for
badgers available far sooner than any results from culling will be known.
However, notwithstanding these differences on the policy of culling, the
proposed judicial review challenges the legality of the licences granted
by Natural England for the reasons set out below.

Mr Stephen Jones

Mr Jones lives in the heart of the Gloucestershire culling zone in the

Forest of Dean overlooking the Wye valley. He is surrounded by farms
which may potentially be taking part in the cull. However, he is in the
invidious and vulnerable position of not knowing which land is at risk so
that he can take steps to avoid harm to himself, his partner or their dog.

Mr Jones has been a farmer for 35 years. He has managed some of the
highest yielding dairy herds in this country and overseas. He has also
worked in bTB hotspots throughout the UK. Currently, he lectures in
rural and environmental policy and does farm consultancy work. He had
to give up farming temporarily when his elderly mother had a stroke and
he returned home to look after her.

Both he and his partner are extremely concerned about the safety risks
posed to them. Mr Jones goes running at dawn every day in the forest
where culling may be taking place. The couple often go walking with
their dog at night across lands which are likely to be in the cull zone.
They frequently cross private land to which the right to roam pertains.
He has observed that the public rights of way often follow hedge lines in
which badgers are more likely to dwell.

He is also concerned about coming across a wounded badger which might

be volatile. He would certainly want to tend to it but, again, would be
concerned about the risks to him from shooters.

Often, the couple go out walking in the hopes of spotting a wild boar.
They turn off their torch and maintain silence so that they will not
disturb the boars or other wildlife such as badgers in the vicinity.
Therefore, they would be invisible to shooters, who would be equally
unlikely to be aware of their presence in the darkness. Therefore, they
are extremely concerned about accidentally crossing into the line of
fire, or being injured by a stray bullet. They cannot even take comfort in
knowing that there is a safety margin from highways and rights of way.
He does not consider that the guidance to shooters offers much comfort.
 4

Natural England

Natural England’s purposes are set out in the Natural Environment and
Rural Communities Act 2006 (‘NERC’). Its position on badger culling and
bovine TB is set out in its two statutory advices to the Secretary of State
for DEFRA in January and July 2011 and its consultation responses. We
have not repeated that information here, apart from the section
appended.

Natural England has been charged with issuing licences to applicants

under section 10(2)(a) Protection of Badgers Act 1992 (which may only
be granted for the purpose of preventing the spread of disease). This is
to be done by way of an agreement with DEFRA under section 78 NERC
and following guidance issued to Natural England by DEFRA under section
15 NERC.

DEFRA’s 2008 statutory guidance to Natural England indicated that

licensing groups of farmers was not considered appropriate, and that this
position would only be evaluated if “new scientific evidence” emerged
which “changed how a cull would need to be delivered”.

No such “new scientific evidence” has emerged. In their 2010

Consultation Response, the former Independent Scientific Group on
Cattle TB noted that

“1.1.3 Analyses of data accumulated since publication of the ISG final

report have revealed ongoing, but diminishing, benefits after RBCT
culling ended. However, these updated estimates of culling effects do
not alter the conditions required for a cull to deliver net reductions in
cattle TB, beyond somewhat reducing the predicted size of the area
that would need to be culled. The requirements for culling to be
efficient, coordinated, simultaneous and sustained are unaffected.”

Natural England’s agreement with DEFRA on discharging wildlife

management functions, states as follows:

“3.1 It is agreed that Natural England will discharge the wildlife

management functions according to the following principles:

3.1.1 Natural England will conserve, enhance and manage the natural
environment for the benefit of present and future generations thereby
contributing to sustainable development - this will often necessitate
the active management of both flora and fauna.

3.1.2 As Ministers made clear in Parliament, Natural England is primarily an

environmental organisation but will, in its implementation of policies,
ensure that decisions are taken consistent with all of its general
purposes under the Act.
 5

3.1.3 Natural England will -

3.1.3 a} Champion the conservation of species and advise on
wildlife management measures and;
3..1.3 b) Consider the needs of people (socio-economic factors
etc) while safeguarding the conservation status of
protected species when carrying out its statutory duties.
3.1.4 Natural England will discharge wildlife management functions based on
all available evidence (environmental, economic and social).

3.1.5 Natural England will not issue licences where the available scientific
evidence is contrary to achieving the required outcomes and would not
normally issue licences where there is a significant adverse impact on
the overall conservation status of a species.

3.1.6 Natural England will provide advice to Defra to assist the formulation of
strategic policy.

3.1.7 Natural England will as an independent NDPB develop its own strategic
view on the implementation of wildlife management policy and will
alert Defra to any potential conflicts between the two.”

Section 2 NERC summarises Natural England’s general statutory purposes

as follows:

“2(1) Natural England's general purpose is to ensure that the natural

environment is conserved, enhanced and managed for the benefit of present
and future generations, thereby contributing to sustainable development.

(2) Natural England's general purpose includes–

(a) promoting nature conservation and protecting biodiversity,

(b) conserving and enhancing the landscape,

(c) securing the provision and improvement of facilities for the study,
understanding and enjoyment of the natural environment,

(d) promoting access to the countryside and open spaces and

encouraging open-air recreation, and

(e) contributing in other ways to social and economic well-being

through management of the natural environment.

(3) The purpose in subsection (2)(e) may, in particular, be carried out

by working with local communities.”

Section 40(1) of NERC provides that: “Every public authority must, in

exercising its functions, have regard so far as consistent with the proper
exercise of those functions, to the purpose of conserving biodiversity.”
 6

Proposed Grounds of Claim

Unlawful failure to conduct a sufficient cost-benefit analysis

The Secretary of State for DEFRA’s December 2011 decision to order

Natural England to grant licences to cull was based on a cost-impact
assessment3 which concluded that the costs outweighed the benefits to
farmers and the taxpayer. That cost impact assessment was based on
assumed costs in relation to a mixture of mainly untested free-shooting
with some cage-trapping and shooting, which was found to be ten times
more expensive. Other options were ruled out because they were “not
considered affordable in the current public spending climate.”

It has now emerged in parliament,4 as confirmed in your letter of 16

October, that the cost of culling is far greater than anticipated and
indeed the precise figure has not been evaluated. Under the DEFRA
Guidance to Natural England farmers will be required to “deposit
sufficient funds to cover the total cost of a four year cull, plus a
contingency sum, and this deposit must be made before culling begins”.

So great are the real costs, that it has been reported that the NFU are
considering withdrawing their assurances that they would cover the costs
of culling if farmers could not afford them.

Against this background, it is incumbent on Natural England to ensure

that before it permits any culling to commence (which must then
continue for four years according to its statutory advice to DEFRA
appended) it will ensure that is it is based on accurate cost-benefit
information. It would be reckless and irrational to proceed in the
absence of this. It would also be in breach of Natural England’s
agreement cited above that they will discharge wildlife management
functions based on all available evidence (environmental, economic and

http://archive.defra.gov.uk/foodfarm/farmanimal/diseases/atoz/tb/document
s/bovine-tb-impact-assessment.pdf In concluding then that the costs of this
Option 6 method of culling outweighed the benefits DEFRA said: “The preferred
option is Option 6 which would enable farmers/landowners to take control of
the wildlife reservoir of the disease at a local level. As illustrated in the IA
which accompanied the 2010 public consultation, option 6 does not present
the best net present value (NPV) (this was for option 4, for industry to
carry out only culling) but does give greatest flexibility for farmers/landowners
to formulate the most suitable local solution. Options 2 and 3 are not
considered affordable in the current public spending climate.”
4
For example, the additional costs of 55 Defra staff surveying 55km and 67km squared
at £850,000 – 18 October 2012 Hansard:
http://www.publications.parliament.uk/pa/cm201213/cmhansrd/cmallfiles/mps/comm
ons_hansard_4765_wad.html
 7

social) and its NERC purposes. It would also be wrong as a matter of

public law following Tameside principles.

Please would you confirm this evening that any deposit collected would
reflect the larger costs, and greater reliance on cage trapping and
shooting (if this policy change has been confirmed). Please confirm the
likely cost or confirm that a detailed cost-impact assessment will be
conducted before any culling will commence.

If cage-trapping has been chosen as the preferred method, please

confirm the costs of those cages and their provenance and explain who
will carry out the cage-trapping bearing in mind DEFRA’s December 2011
policy, guidance to Natural England and assurances to parliament about
the methodology and likely costs.

Please confirm whether those due to conduct cage trapping have

received training and confirm the cost of that training.

We would remind you of your duty of candour and duty to assist the
court under the CPR 54 protocol.

The approach to setting upper and lower limits on the numbers of

badgers to be taken in the cull zone is irrational

The policy requires culls to remove at least 70% of badgers, without

causing local extinction. Removing too few badgers risks increasing
cattle TB, while removing too many risks contravening the Bern
Convention. Unfortunately, the method used by Natural England to set
culling targets carries serious risks of generating one or other of these
unfavourable outcomes.

Being nocturnal and secretive, badgers are difficult to count and even
the best available methods are imprecise. Various types of statistical
uncertainty propagate so that it is extremely difficult to be confident of
culling more than 70% of badgers without causing local extinction. In this
context, the method used by Natural England entails six important flaws.

(a) Since Natural England’s primary purpose is to conserve England’s

wildlife, it would normally be expected to prioritise the avoidance of
local extinction of native species over the control of livestock disease
(which is not a primary function of Natural England). However, the
approach to setting culling targets appears to take the opposite
approach, prioritising culling at least 70% of badgers over avoiding local
extinction.

Survey effort has been insufficient to achieve both goals with high
certainty; hence the two need to be traded off against one another.
Surveying 50 one km squares is expected to give an 80% confidence of
avoiding local extinction but only a 65% confidence of removing at least
70% of badgers. More precautionary approaches, with lower extinction
 8

risks more in-keeping with Natural England’s statutory purpose, are not
presented but would afford still lower confidence of removing 70% of
badgers. With the same assumptions, the favoured option of achieving
80% confidence of removing 70% of badgers would carry an unacceptably
high 35% risk of exceeding the threshold for local extinction. This
approach is not consistent with Natural England’s purposes.

(b) The minimum and maximum numbers of badgers to be culled are

very similar to one another, with a consequent risk that marksmen will
accidentally exceed the maximum. Maintaining a real-time tally of the
numbers of badgers culled is unlikely to be practicable where marksmen
need to operate in remote areas with often limited mobile phone
coverage, in silence and total darkness. In the worked example, the
minimum and maximum numbers differ by just nine badgers, far fewer
than marksmen might expect to cull each night within a 300 sq km area.

(c) The approach attaches too high a confidence level to the projected
outcomes of culling different numbers of badgers because, while it
formally accounts for lack of precision in the estimates of sett density, it
assumes that the number of badgers per sett is measured without error.
In fact, there will be not only measurement uncertainty around the
estimates of badgers per sett, but also substantial local variation
reflecting the availability of food for badgers, habitat and geological
factors affecting the availability of suitable sites to excavate setts, and
past culling. Such variation is not taken into account in the protocol.

(d) The numbers of badgers per active sett is likely to be systematically

under- or over-estimated, because it is based upon data from just two
sites in Gloucestershire which are unlikely to be representative of TB-
affected areas of England.

(e) The approach assumes systematic surveys conducted by experienced

staff. This contrasts with the statement in Defra’s policy document that

5.37. Estimating badger populations accurately is difficult. However, we

have a large amount of information from past fieldwork (including the
RBCT, the Badger Vaccine Study, studies at Woodchester Park, and
previous national badger and road traffic accident surveys) that can be
used to estimate badger numbers. In addition, we have commissioned a
national badger survey to update these estimates and a desk-based
study which uses existing data to make better estimates of the number
of animals per social group.

5.38. Natural England will use this available information in combination

with applicants’ own assessment of the numbers of setts present on
their land to estimate the size of the badger population within a
licence area and advise applicants on the minimum number of animals
they need to remove to reduce the estimated badger population in the
area by at least 70%.

(emphasis added)
 9

(f) Finally, the approach is only applicable to the initial cull in each
area. The same approach cannot be applied to subsequent annual
culls because culling alters badgers’ movement behaviour and hence
the relationship between numbers of setts and numbers of badgers.

If these issues cannot be resolved satisfactorily, Natural England has no

option but to revoke the licences and refund deposit money to farmers.

Grounds relating to the Serious Public Safety Risks

In your letters of 27 and 28 September and 16 October you confirmed

that there is no safety margin being imposed in licensed areas. There
will be no safety cordon nor any markings to the public so that they may
take steps to limit risk.

There is no way for a non-participating member of the public to know

where culling might be taking place, apart from if a bullet whistles past
them or they come across an injured or dead badger or a badger in a
trap. Those affected may include people walking their dog at night,
children playing in the forest, people working the land or walking home
from the pub or work by nightfall, ramblers at dusk or dawn in what are
popular natural areas.

You have confirmed that part of the affected land is covered by the
right to roam. This makes the dangers all the more stark as people may
roam all over what is otherwise considered private land.

Currently, the October 2012 Guidance on Shooting Badgers at night

confirms that:

“The firearms/ammunition permitted under licence are limited to the

following
• Rifles: a minimum of .22 centre-fire calibre, with minimum
bullet weight of 50 grains and minimum muzzle energy of 1000
footpounds
• Shotguns: 12 bore only, with full, three quarter or half choke,
using a cartridge loaded with AAA shot or BB shot.

The provisions of the Act potentially allow the use of some .22 rim-fire
cartridges, but these are not considered powerful enough to ensure a
humane kill in the field and will not be licensed. In addition, because of
the limited power and range of shotguns, they are only permitted for
shooting at very close range – no more than 10 metres – when shooting
over a bait point from a fixed shooting position, such as a high seat.”

Plainly, under the Human Rights Act 1998, every decision or action which
Natural England takes must comply with most of the articles of the
European Convention of Human Rights (‘ECHR’). Of particular relevance
to this case are Articles 2, 8 and 10 ECHR. Section 6 of the Act makes
clear that compliance means not only not interfering with those rights in
 10

most circumstances but also taking positive steps to ensure that

members of the public may also enjoy these rights.

Specifically, Natural England appears to have acted in breach of its

positive obligations under Article 2 (taking proactive steps to prevent
risk to life where there is a credible threat) and Article 8 (right to
respect for private and family life and home. ‘Private life’ has a wide
meaning and includes a person’s ‘physical and psychological integrity’
and their way of life.) Article 10 (right to receive information) is also
engaged given the fact the culling is taking place under a cloud of
secrecy despite its serious impacts on the wider community.

Interference with these qualified rights is only lawful if it is strictly

necessary, proportionate and in pursuance of a legitimate aim. In
assessing whether Natural England has struck a fair balance between the
competing interests of licence applicants and the community as a whole,
the court may assess not only the substantive merits of the decision but
also the decision-making process to ensure that due weight has been
accorded to the interests of the individual (Hatton v United Kingdom
[2003] 37 EHRR 611).

In this context the fair balance will not be struck if:

• fails adequately to take into account the views of those affected;

• fails to give due weight to competing considerations;
• involves inadequate investigation;
• the decision is procedurally unfair; or
• because it is in breach of an undertaking given that is sufficient
to give rise to a substantive legitimate expectation that they will
be treated in a particular way.

In respect of what follows we would also draw your attention to Natural

England’s strict obligations under the Aarhus Convention on Access to
Information in Environmental Matters and the ‘Public Participation
Directive’ 2003/35/EC. The latter have transparency and public
participation in decision-making and access to information at their core.
These aspects are integral to the procedural and substantive Convention
rights listed.

In relation to Natural England’s positive obligations we refer to the

Grand Chamber’s comments in Öneryildiz V. Turkey (2005) 41 E.H.R.R.
20; [2004] Inquest Law Reports 108 which has been cited with approval
in a range of different domestic positive obligations cases:

“89. The positive obligation to take all appropriate steps to safeguard

life for the purposes of Article 2 […]

90. This obligation indisputably applies in the particular context of

dangerous activities, where, in addition, special emphasis must be
placed on regulations geared to the special features of the activity in
 11

question, particularly with regard to the level of the potential risk to

human lives. They must govern the licensing, setting up, operation,
security and supervision of the activity and must make it compulsory for
all those concerned to take practical measures to ensure the effective
protection of citizens whose lives might be endangered by the inherent
risks.

Among these preventive measures, particular emphasis should be placed

on the public’s right to information, as established in the case-law of
the Convention institutions. The Grand Chamber agrees with the
Chamber (see paragraph 84 of the Chamber judgment) that this right,
which has already been recognised under Article 8 (see Guerra and
Others, cited above, p. 228, § 60), may also, in principle, be relied on
for the protection of the right to life, particularly as this interpretation
is supported by current developments in European standards (see
paragraph 62 above).”

and

“108. The Court will next assess the weight to be attached to the issue
of respect for the public’s right to information (see paragraph 90
above). It observes in this connection that the Government were unable
to show that any measures were taken in the instant case to provide the
inhabitants of the Ümraniye slums with information enabling them to
assess the risks they might run as a result of the choices they had made.
In any event, the Court considers that in the absence of more practical
measures to avoid the risks to the lives of the inhabitants of the
Ümraniye slums, even the fact of having respected the right to
information would not have been sufficient to absolve the State of its
responsibilities.”

In summary, we consider that the licences granted are unlawful in the

following ways:

a. Failure to provide information in breach of HRA so that

members of the public may take steps to protect
themselves. In particular, we are most concerned about
the failure of the Defendant to disclose the HSE safety
risks to third parties assessment in relation to shooting so
that the visiting and resident public may decide what
steps they should take to prevent injury to themselves,
their children or pets. (If it says there is no risk, then one
assumes it would have been disclosed.)

b. Failure to have in place any restrictions on the right to

roam lands and/or have safety cordons in place.

c. Failure to exercise powers to restrict land access to

protect the public from stray bullets

i. The Defendant has confirmed that there are no

proposals to temporarily close public rights of way.
 12

Given that the Defendant will not reveal which

specific areas are high risk, there is a failure to
exercise its powers to impose restrictions to the
land to protect the public under sections 24 and 25
of the Countryside Rights of Way Act 2000.

d. Failure to impose a condition preventing people shooting

within 50 feet of the centre of public highways, although
to do so is ordinarily a crime under section 106 Highways
Act 1980.

e. Irrational failure to have in place a safety margin to

protect the public (given badgers tend to build their setts
near hedges which are likely to constitute the perimeters
of cull zones, this is an exceptional omission).

f. Failure to advise non-participating farmers of the risks to

them specifically, both in terms of safety but also
perturbation and a spike in breakdowns on their land. The
letter sent to those on adjoining land lacks adequate
information about the risks to their property. (We have
been contacted by worried farmers but due to fears of
intimidation or loss of work, they have not yet instructed
us to join proceedings. We will keep you updated on this.)

Failure to Consult lawfully

Normal public law principles as regards consultation were summarised as

follows in the seminal case of R v London Borough of Brent ex parte
Gunning (1985) 84 LGR 168 by Hodgson J:

“Consultation must be at a time when proposals are still at a formative

stage….The proposer must give sufficient reasons for any proposal to
permit of intelligent consideration and response. …adequate time must
be given for consideration and response ….. the product of the
consultation must be conscientiously taken into account in finalising ….
any proposals.”

Given the serious risks to the public, we do not consider that the micro
Opportunity to Comment published in two local newspapers back in
January 2012 (before application zones were known) complies with
lawful consultation principles. It contained insufficient information for
people to respond in any meaningful way. It was unclear whether ones
land or local area where one might walk fell into the ‘at risk’ culling
zones. Further, it was held before the Shooting Guidance was published
in October 2012 (or its draft predecessors).

In your letter of 16 October you suggested that whether the guidance on

shooting and training standards was available at the time was irrelevant
as the purpose of the consultation was not to seek comments on the
 13

competence of those undertaking the cull. This is not the point we made
in our letter. We are concerned about the risks to non-participating
farmers and members of the public who were not, and still have not
been lawfully consulted as they are in the dark about the precise culling
boundaries and the risks to their safety and their cattle. For those
concerned with public safety, it would have been useful to see the
guidance so that they could assess what, if any, safeguards would be put
in place.

Failure to put in place systems to measure loss or compensate

businesses in the area for loss directly associated with the cull

In light of Natural England’s purposes under section 2 NERC and its

agreement to “consider the needs of people (socio-economic factors etc)
while safeguarding the conservation status of protected species when carrying
out its statutory duties”, there has been an unjust, irrational failure to
take any steps either to measure and to compensate for loss of income
to tourism and other businesses in the licensed areas who may be
adversely affected by the cull, either directly through loss of revenue in
the area or through supermarket boycotts.

Failure to conduct a lawful environmental screening exercise or

impact assessment in Somerset or Gloucestershire

In addition to its statutory functions set out above, Natural England has
been given a specific advisory role under section 129 the Conservation of
Habitats and Species Regulations 2010. It may provide advice and
assistance, or make representations, to any competent authority on any
matter which relates to England and is connected with the discharge of
the competent authority's functions under these Regulations.

In your reply of 16 October, in confirming that no screening exercise or

environmental impact assessment had been done in either area, you said
that the badger cull could not be considered a ‘project’. However, it is
undoubtedly a ‘plan’, and even according to DEFRA’s own consultation5
an assessment must be carried out before granting a licence which might
have a significant effect on a European protected site..

However, even if this were not so, as a matter of public law, it is

impossible for Natural England to know whether widespread culling
through an untested mixture of free-shooting and cage-trapping and
shooting will have such an impact on effected sites without doing an
assessment on the proposals cumulatively, as well as individually in
relation to licence applications6.

5
Paragraph 13, Annex A http://www.defra.gov.uk/consult/2011/07/19/bovine-tb/ This
point is repeated in DEFRA’s guidance to Natural England at paragraph 13.
6
See Case C-142/07 Ecologistas en Accion-CODA v Ayuntamiento de Madrid (25 July
2009).
 14

It is a fundamental principle of public law that a decision may be

unlawful if a public body failed to gather sufficient information on any
adverse impact and/or failed to properly understand it. There can be no
lawful exercise of discretion to proceed with a policy if the decision
maker does not properly understand “the problem, its degree and
extent”7. A failure to gather adequate information to that end will
breach the duty to ensure that conclusions of fact are supported by
adequate material of probative value8. Furthermore, a failure to
understand the information that has been gathered will be an error of
fundamental fact9.

Please confirm that a lawful impact assessment will be conducted by

Natural England before any culling may commence, and the results of
the impact assessment given due consideration as required by EU law.

Action which the Defendant is requested to take

• Postpone any badger culling until we have received a satisfactory

substantive response, and until after the parliamentary debate
on 25 October in any event. Please see Natural England’s
statutory advice to DEFRA appended to this letter. It clearly
warns that aborting the cull prematurely would spread bTB and
that one must wait until the licence criteria and NERC conditions
are satisfactorily met. We seek assurance that Natural England
will not act in breach of its statutory duties, guidance on
licensing and statutory advice.

• Confirm that a reasonable safety margin will be imposed and

that, if not, land access will be restricted and clearly marked to
protect the public.

• Confirm that a thorough screening exercise and impact

assessment will be carried out in relation to sites in both areas.

• Confirm that the Defendant will put in place systems to

compensate businesses in the area for loss directly associated
with the cull/ or ensure that the Interested Party does so if that I
considered more appropriate.

• Please provide the information requested above in line with the

duty of candour.

7
R(Lunt) v Liverpool City Council [2009] EWHC 2356 (Admin) at [43] and [44].
8
Secretary of State v Tameside MBC [1977] AC 1014, Reid v Secretary of State for
Scotland [1999] 2 AC 512 at 541 and R v Inner London Crown Court, ex p. Provis [2000]
COD 481
9
E v Secretary of State [2004] QB 1044, [2004] EWCA Civ 49 at 61
 15

Concluding remarks

Our clients have embarked on this course of action with great

reluctance. However, they remain committed to finding an acceptable
alternative, and confirm their willingness to enter into mediation for this
purpose provided that no further steps are taken until we have had a
satisfactory response to this letter and the debate in parliament has
taken place.

Should you have any queries please contact Gwendolen Morgan,

associate with conduct of the case in the Public Law and Human Rights
department on 020 7833 4433. We look forward to hearing from you by 5
November (and by return on the urgent matters highlighted above).

Yours faithfully

Bindmans LLP
 16

In their statutory10 advice to DEFRA in January 2011, Natural England

stated as follows. In light of this, it is impossible for the Defendant to
continue the licensing process until the issues in this letter have been
satisfactorily resolved.

“To deliver a net benefit culling needs to be carried out at a sufficient intensity
(i.e. removing > 70% badgers from > 70% of the area) for at least four years.
This is a major undertaking for a group of individual farmers and landowners to
coordinate and deliver. Unlike other areas of licensing, failure to deliver the
licensed action fully and effectively could make the disease situation the
licence was issued to resolve significantly worse; worse not just for the
participants, but potentially for their neighbours. The evidence for this is
provided by the RBCT. For example, the detrimental effects of culling on
disease incidence dominate initially, and it is only after the fourth annual cull
the number of breakdowns prevented exceeded the number induced by culling.
Failure to sustain culling for the full duration of the licence could,
therefore, lead to a net negative effect on disease incidence.

Risks to effective coordination and delivery include:

i. Changes to land ownership of land-use.

ii. Withdrawal of support. Applications are likely to rely – in part – on

access to land belonging to people without livestock. The support of
this group of people may be particularly sensitive to opposition from
others to culling.

iii. Withdrawal of participation: a tail-off in commitment of

participants may occur for various reasons, including the high
costs of control (particularly if shooting proves less effective than
envisaged), the practical difficulties of killing badgers at the
intensity required, or as a reaction to local opposition to culling.

iv. Free-shooting proves ineffective. Culling by free-shooting is

estimated to be about 10-fold less costly than by cage-trapping and
shooting. The method is unproven and should it prove less effective
than anticipated then an increased reliance on cage trapping will
increased costs of control which could, in turn, impact on the
effectiveness of the cull and on participant commitment.

[….]

i. In the absence of accurate baseline population data on badger

populations in each area it will be very difficult to judge the
effectiveness of culling (or set accurate targets) which will make it
difficult to decide when it is appropriate (and fair) to intervene.”

10
Natural England’s advice is provided to the Secretary of State for DEFRA
under section 10(6) Protection of Badgers Act 1992 and section 16(10)(b)
Wildlife and Countryside Act 1981.