40.—(1) Nothing in regulation 39 shall make unlawful–
(a)anything done in pursuance of a requirement by the agriculture Minister under section 98 of the Agriculture Act 1947(1) or section 39 of the Agriculture (Scotland) Act 1948(2) (prevention of damage by pests); or
(b)anything done under, or in pursuance of an order made under, the Animal Health Act 1981(3).
(2) Nothing in regulation 39(1)(b) or (d) shall make unlawful anything done within a dwelling–house.
(3) Notwithstanding anything in regulation 39, a person shall not be guilty of an offence by reason of–
(a)the taking of a wild animal of a European protected species if he shows that the animal had been disabled otherwise than by his unlawful act and was taken solely for the purpose of tending it and releasing it when no longer disabled;
(b)the killing of such an animal if he shows that the animal has been so seriously disabled otherwise than by his unlawful act that there was no reasonable chance of its recovering; or
(c)any act made unlawful by that regulation if he shows that the act was the incidental result of a lawful operation and could not reasonably have been avoided.
(4) A person shall not be entitled to rely on the defence provided by paragraph (2) or (3)(c) as respects anything done in relation to a bat otherwise than in the living area of a dwelling–house unless he had notified the appropriate nature conservation body of the proposed action or operation and allowed them a reasonable time to advise him as to whether it should be carried out and, if so, the method to be used.
(5) Notwithstanding anything in regulation 39 a person–
(a)being the owner or occupier, or any person authorised by the owner or occupier, of the land on which the action authorised is taken, or
(b)authorised by the local authority for the area within which the action authorised is taken,
shall not be guilty of an offence by reason of the killing or disturbing of an animal of a European protected species if he shows that his action was necessary for the purpose of preventing serious damage to livestock, foodstuffs, crops, vegetables, fruit, growing timber or any other form of property or fisheries.
(6) A person may not rely on the defence provided by paragraph (5) as respects action taken at any time if it had become apparent before that time that the action would prove necessary for the purpose mentioned in that paragraph and either–
(a)a licence under regulation 44 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.
(7) In paragraph (5) “local authority” means–
(a)in relation to England and Wales, a county, [F1county borough,] district or London borough council and includes the Common Council of the City of London, and
(b)in Scotland, a regional, islands or district council.
Extent Information
E1This version of this provision extends to England and Wales only; a separate version has been created for Scotland only
Textual Amendments
F1Words in reg. 40(7)(a) inserted (E.W.) (1.4.1996) by The Local Government Reorganisation (Wales) (Consequential Amendments) Order 1996 (S.I. 1996/525), arts. 1, 3, Sch. para. 18(3)
Commencement Information
I1Reg. 40 in force at 30.10.1994, see reg. 1(2)
40.—(1) A person shall not be guilty of an offence under regulation 39(1)(a) or (b), (2), or (3)(a) or (b), if that person shows that what was done–
(a)was in relation to an animal that had been seriously disabled otherwise than by that person's unlawful act and there was no reasonable chance of its recovering; and
(b)was done solely for one or more of the purposes of–
(i)ending the animal's life in a humane manner; or
(ii)where the animal's life had been so ended, disposing of it (otherwise than by sale or exchange) as soon as practicable after it was dead.
(2) A person shall not be guilty of the offence under regulation 39(1)(a) of deliberately or recklessly capturing a wild animal of a European protected species, or an offence under regulation 39(3)(a) or (b), if that person shows that what was done–
(a)was in relation to an animal that had been disabled otherwise than by that person's unlawful act; and
(b)was done solely for one or more of the purposes of–
(i)tending it and releasing it when no longer disabled; or
(ii)releasing it after it had been tended,
and was done in a manner or in circumstances unlikely to cause the animal unnecessary suffering.
(3) A person shall not be guilty of an offence by reason of any act made unlawful by regulation 39 if that person shows that the act was carried out in relation to an animal bred and, at the time the act was carried out, lawfully held in captivity.]
Extent Information
E2This version of this provision extends to Scotland only; a separate version has been created for England and Wales only
Textual Amendments
F2Reg. 40 substituted (S.) (15.2.2007) by The Conservation (Natural Habitats, &c.) Amendment (Scotland) Regulations 2007 (S.S.I. 2007/80), regs. 2, 11
1947 c. 48; section 98 was amended by the Prevention of Damage by Pests Act 1949 (c. 55) and the Pests Act 1954 (c. 68).
1948 c. 45; section 39 was amended by the Prevention of Damage by Pests Act 1949 (c. 55), the Pests Act 1954 (c. 68) and the Deer (Amendment) (Scotland) Act 1982 (c. 19).
1981 c. 22; the Act was amended by the Animal Health and Welfare Act 1984 (c. 40) and the Environmental Protection Act 1990 (c. 43).