There is nothing remotely kind about informing a client that health and safety fears will not automatically qualify them for a Badger exclusion licence.
Today saw Urban Wildlife advising a client that, although they have 240 pupils between the ages of 3 – 12 yrs and the area they need to play in is now a cordoned-off area of pot holes, badger damage, latrines and subsidence, their application for a licence can not be submitted under health and safety grounds but must be submitted under damage limitation measures.
When asked to clarify the Badger Act 1992, section seven, it seems to most that a badger damaging your property can indeed be killed ….
“7.—(l) Subject to subsection (2) below, a person is not guilty of an offence under section 1(1) above by reason of— (a) killing or taking, or attempting to kill or take, a badger; or (b) injuring a badger in the course of taking it or attempting to kill or take it; if he shows that his action was necessary for the purpose of preventing serious damage to land, crops, poultry or any other form of property.
(2) The defence provided by subsection (I) above does not apply in relation to any action taken at any time if it had become apparent, before that time, that the action would prove necessary for the purpose there mentioned and either— (a) a licence under section 10 below authorising that action had not been applied for as soon as reasonably practicable after that fact had become apparent; or (b) an application for such a licence had been determined. “
….. However unless you read the act as a whole it should never be relied upon as a defence or mitigation measure. Whilst never written for “urban badgers” the Badger Act 1992 must still be adhered to in law.
Why was Health and Safety was never included in the act? Presumably because the Badger Act is a piece of legislation that was only meant to prevent further persecution against Badger baiter’s and others who sought to harm them.
Trying to operate within the Badger Act 1992 when mitigating for damage in an urban environment in 2015 is a minefield which could easily lead to misinterpretation, conviction and / or penalties, including custodial sentences.
There are currently three types of license that are considered by Natural England these being, Damage, Development and Agricultural operations.
A damage licence is the most commonly used in commercial and domestic situations when grounds and property is being damaged; (Development in any form when linked with a badger sett, whether causing damage or not, is considered differently).
The onus is on the land owner to prove that damage caused by continued Badger activity is at a level which is no longer acceptable or constituting considerable risk to property.
The Badger Act does not take into account any financial loss caused directly or indirectly by Badger presence or activity.
Most insurance company’s are ignorant when it comes to dealing with Badgers or associated problems.
If an insurance company can not recover the cost of a claim then they are generally reluctant to offer cover or recompense.
Badgers are classed as wild animals therefore they are not owned. In these instances the cost of the claim can not be recovered.
Badger works can be conducted between the dates of the 1st of July and the 30th November each year. Outside these times works cannot be conducted, as Badgers breed throughout the winter months.
He may only be a Badger but his protection is up there with the best of them! some would say more so than the protection we can offer our children ….
If you are experiencing Badger issues, seek professional advice. There are always mitigation measures that can be implemented and whilst the current Badger Act may be 23 years old, it still bites hard and fast for the unwary or the ignorant.