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How about an in-situ shot?

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Richard2 View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Richard2 Quote  Post ReplyReply Direct Link To This Post Posted: 11 Dec 2013 at 11:09pm
I want to add, as well - because, obviously, it is troubling to think that the law could be interpreted so restrictively - that the 1981 Act refers specifically to intentional disturbance. Someone watching an animal from a path fairly clearly does not intend to disturb it, though accidental disturbance (of, arguably, a trivial kind) may occur. Disturbing the animal would bring the watching to an end.

I have always thought that disturbance meant something more active and intentional, such as catching and handling animals or trampling habitat. The draconian interpretation could also be applied, presumably, to birdwatching in the open or even from a hide, since noise and movement from within a hide can still make the birds fly away.

I'm not a lawyer, and until we get legal advice or a test case in court we won't know for certain whether "disturbance" could apply to watching from a footpath, but I imagine that the ability to say that one was doing exactly what Natural England, a government agency, had publicly invited one to do would be quite a powerful defence.
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will View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote will Quote  Post ReplyReply Direct Link To This Post Posted: 12 Dec 2013 at 6:41am
I agree with what's been said in terms of real threats to our rare reptiles and amphibians; it's a shame that once again the Law takes a broad brush approach, equating disturbing ospreys at the nest with flushing a sand lizard into cover. In the case of the former, the birds might desert their chicks, in the latter, the lizard will be back out and basking in exactly the same place two minutes later (of course I am not in any way condoning trying to capture one, merely to get a bit closer to have a look). There is also an evident contradiction between the 'public engagement and education' message from NE and the information boards - 'look at our wonderful sand lizards, natterjacks etc - oh, but actually, sorry, you can't...'
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Richard2 View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Richard2 Quote  Post ReplyReply Direct Link To This Post Posted: 12 Dec 2013 at 9:51am
Hold on, though. We really don't know that the law takes this broad brush approach. It has never been tested. I don't believe anyone is likely to be prosecuted for merely flushing a Sand Lizard into cover by crouching to watch it from a public path. There seems to be an exaggerated fear here.

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GemmaJF View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote GemmaJF Quote  Post ReplyReply Direct Link To This Post Posted: 12 Dec 2013 at 1:58pm
Fact is though, probably anyone on this forum would actually want to get closer still. For the public observing from a footpath it is a huge jump to the photographer staging a shot and possibly handling the animals. It's just easier in every way to be licensed if one is going out with the intention to seriously study/observe the animals.

The sense behind it isn't really the point. We had a similar argument regarding torching for GCN. I doubt it really disturbs them that much, at worst I guess it could break up a mating pair, the chances are they would forget about it within 10 seconds. The point is though NE are vague about it. 

It says on my GCN licence that torching is a licensable activity - it would therefore follow in my feeble mind that NE consider one needs a license to do it.... Asking NE directly one gets replies such as it 'depends'. 

Seems daft to me that one would need a licence to watch newts in a garden pond at night using a torch, but that is the way it is.

So in all my advice is, don't advise people to break the law, especially those laws that have not be tested and have no case law.

If you are going out to disturb protected species intentionally, either survey or close observation, at least consider getting a licence to do so if one is required by law....
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Richard2 View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Richard2 Quote  Post ReplyReply Direct Link To This Post Posted: 12 Dec 2013 at 2:42pm
Handling the animals could scarcely be considered anything other than disturbance, I agree. I don't really know what "staging a shot" involves, since my own photographs tend to be taken spontaneously with an ordinary hand-held camera, and are therefore far from professional quality. Anything very prolonged and intrusive would obviously constitute disturbance, but I am not sure why a tripod set up on a path with the photographer waiting silently would be a problem.

What concerns me about all this, apart from my own freedom to watch animals in the wild, is that these animals are part of our public heritage and culture. I take that very seriously.  If people are not allowed ever to see them, they will become ghosts in the landscape, mere rumours or theoretical presences. Why then would people think there was any point in protecting them? Licenses are fine and necessary for genuinely specialised work that involves handling, but if they come to be seen as a prerequisite for even watching, then we will have reached a state of affairs in which these animals are only visible to experts. In a sense, they will only exist for the experts. That is the opposite of the idea of natural heritage, which an agency like Natural England or the National Trust obviously exists to protect and promote. If one looks back to the natural history literature of the period immediately after World War Two - a sort of golden age for such literature - one finds the idea that Britain's wildlife is the common possession of its people, and part of what they deserve after the wartime sacrifices. We need more of that today - the idea that people have a right to see these animals in the same way that they have a right to look at buildings, landscapes and publicly-owned works of art. Conservation needs may sometimes impose limitations on that right, but the conservationists should seem themselves as stewards of public heritage, and should aspire to maximise that right as far as possible.

I'm very interested in that answer from NE - "it depends". This answer of course constitutes an admission that there are some circumstances in which torching does not require a license. It is up to NE then to explain those circumstances. Did they say upon what it depends?

We should not allow ourselves to be fearful of extreme worst-case interpretations of the law, when the agencies responsible for stewardship are telling us in their publicity that watching these animals is encouraged. Why not just take them at their word?

Richard
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will View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote will Quote  Post ReplyReply Direct Link To This Post Posted: 12 Dec 2013 at 3:17pm
I agree with all of that, Richard, very eloquent. But my point was not if you accidentally disturbed a sand lizard by casting your shadow on it from a footpath, but, as Gemma suggests, if you actually saw one and then tried a stealthy approach to get a closer view (and maybe even a sneaky photograph); you would intentionally be disturbing the protected species, no question...   and I do think that some conservationists are too quick to adopt the 'leave it to the experts' approach which can only serve to disenfranchise the great British public from the conservation of these animals - experiences like Jason's prove this, unfortunately. Back in the 90's I was shown where to look for tins on Dorset heaths by a great NT warden who appreciated that although I had no licence, I represented no threat to smooth snakes and that perhaps by encouraging my interest and turning a blind eye, he might encourage a lifelong interest in these animals - and guess what? it worked!
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Post Options Post Options   Thanks (0) Thanks(0)   Quote GemmaJF Quote  Post ReplyReply Direct Link To This Post Posted: 12 Dec 2013 at 3:20pm
It's one of those arguments Richard where I can agree with everything you are saying. But to clarify, many photographs involve, positioning the animals, distracting them to look in a certain direction etc etc. Trust me I can tell a true in-situ shot very easily from a staged one, so know plenty of staged shots are posted.

In all can we as a forum be seen to advise people to break the law? Really that is what it all comes down for me. Regardless of how I actually view the law/laws in question.

In reality it isn't all that difficult to obtain a license, so it makes it all a bit mute. Certainly someone with the resources to transport themselves to sand lizard site, would be more than capable of obtaining a license.

For the record no, they did not state on what it depends. The reason being that they like me can see it is a sort of implied offence. (in that the animals will not be a very good witness as to how disturbed they were - it's entirely open to somebody's interpretation, who probably was not even present at the time) I don't want myself or anyone associated with this forum to be the one to test the law and find out what it depends on, that really is my point.

So is the law an ass? 

Of course it is.

Would I on this forum recommend anyone does not comply with wildlife legislation and potentially breaks the law?

Of course I won't.


Edited by GemmaJF - 12 Dec 2013 at 3:33pm
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Richard2 View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Richard2 Quote  Post ReplyReply Direct Link To This Post Posted: 12 Dec 2013 at 3:40pm
Will,

Yes - well that would be a question of how close you tried to get, and whether you left the footpath, I suppose. If a warden felt you were getting into illegal disturbance territory they would be entitled to tell you to stop. In many places the banks are only inches from footpaths anyway. I'm all for licenses where scientific or conservation work requires intrusive disturbance, but what we should guard against is the assumption that a license is necessary for all kinds of experience of these wild animals. Birdwatchers don't interpret the law that way. Their activities are very public. No one tries to stop them or prosecute them.

Gemma,

As far as these staged photographs are concerned, I agree with you. They obviously constitute disturbance, if they involve deliberate positioning or distracting. And it may be easy enough to get a license if you are in the know (though they wouldn't give you one just because you enjoyed watching lizards presumably, you would have to prove that you were doing research or conservation work for some recognised agency). But my whole point is that the sight of these animals shouldn't be restricted to people in the know and engaged in that kind of work, and it seems to me a perverse interpretation of the law to attribute that intention to it.
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GemmaJF View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote GemmaJF Quote  Post ReplyReply Direct Link To This Post Posted: 12 Dec 2013 at 4:09pm
I've never seen a bird watcher stand within 12 inches of the subject though Richard. They are often half a mile away or more.

Would you photograph bats in a roost without a licence? That is a more realistic comparison.

NE will issue photography licences without you having to meet all the requirements of commercial development licence as stated above. Wink

The guidance on photography is available here:

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Richard2 View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Richard2 Quote  Post ReplyReply Direct Link To This Post Posted: 12 Dec 2013 at 5:21pm
Thanks, Gemma. That's interesting. No, I wouldn't think it OK to take photographs in a bat roost without a license, but that seems to me more intrusive than watching lizards from a footpath and perhaps flushing them into cover. It would presumably mean letting light into the bat roost.

Bird watchers do sometimes startle birds into flying away. I've seen it many times, and I'm not sure that the distance away from the birds is the crucial factor. Birds react to things at longer distances than lizards. So to me the bird-watching analogy seems closer. A lizard is startled into running under cover. A bird is startled into taking flight. These seem to me to be similar levels of disturbance, and in both cases the watcher may take care but cannot really guard against them happening. Both disturbances are essentially similar to disturbances that take place all the time in the wild without human intervention, whereas the intrusion into the bat roost would be a much rarer event in the wild.

All these comparisons are imperfect, I know. One can err on the side of excessive restriction and on the side of excessive liberty.

Richard
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