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SNH/16/06/A2007764

DEER MANAGEMENT ON THE ASSYNT PENINSULA

Summary 1. The woodlands of Ardvar SSSI and SAC are in ‘unfavourable condition’ as a result of

prolonged grazing pressure from red deer. There is a long-standing history of failed attempts to get the key parties to agree a plan for managing the deer. In May 2014 the SNH Board agreed a twin-track approach of fencing plus delivery of a Deer Management Plan (DMP) by the Assynt Peninsula Sub-Group (APSG)1 as the preferred option for addressing the issues on this site. The Board indicated then that if this failed, consideration would be given to using regulatory powers under Section 8 of the Deer (Scotland) Act 1996.

2. Some progress was made with the fencing plans but the APSG failed to deliver a DMP

and so we offered a S.7 voluntary Control Agreement to provide a framework for collaborative deer management. We were unable to secure the S.7 Agreement within the statutory 6 month timeframe and we were therefore considering regulation under S.8. We listened to a last minute plea from the APSG to come up with a plan to deliver the required deer culls.

3. The adequacy of this plan, and our confidence in the ability of APSG to deliver it,

requires careful consideration. The alternative is to regulate now and seek to impose a S.8 Control Scheme through Scottish Ministers. This paper provides the background and context to this decision and provides two options for the Board to consider, together with an assessment of the risks and benefits of each option and a recommended way forward.

Action

4. The Board is invited to consider the two options and reach a decision. The

recommended option is to allow the APSG a further 10 months to deliver the required deer culls for stags and hinds; implement fencing plans; and develop a long term strategy for deer management through its Deer Management Plan (DMP).

Preparation of paper

5. This paper was prepared by Kristin Scott, Area Manager Northern Isles & North Highland

(NINH), with input from Valerie Wilson, Operations Officer, NINH; Donald Fraser and John Kerr both of National Operations Unit (NOU); Jeanette Hall of Rural Resources Unit (RRU). It is sponsored by Nick Halfhide, Director of Operations.

Background

6. The woodlands of Ardvar SSSI and SAC, notified for upland birch woodland and old,

sessile, oakwood habitats respectively, are in unfavourable condition as a result of prolonged grazing pressure from red deer. This has led to an impoverished ground flora, poor age structure with senescent trees and little regeneration beyond seedling stage. The condition of the woodland has been unfavourable declining since formal monitoring began in 2004. A woodland age-profile study (Beck, 2007) indicated that much of the

1 The Assynt Peninsula Deer Management Group is a sub-group of the over-arching West Sutherland

Deer Management Group.

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woodland was in urgent need of action to secure regeneration. In 2010 marked seeding monitoring suggested that a high level of deer damage was still occurring and that management measures put in place were not being effective. A recent survey (Clements, March 2015) shows that there has been a slight improvement recently in habitat condition with pulses of growth to sapling stage. These comprise approximately 15 - 20 hectares (5 - 7%) locally in pockets across the site and within the three main ownerships (although concentrated around Loch Nedd to the west of the site). However this is in areas that are fairly inaccessible to deer and the overall condition of the designated woodland remains unfavourable declining.

7. The designated site extends to 731 hectares and is located on the Assynt peninsula in

West Sutherland. It is designated as a European protected SAC for its woodland interest as part of the larger Ardvar and Loch a’ Mhuilinn SAC. Woodland cover comprises 275ha. There are three main owners of this designated woodland - the privately owned Ardvar Estate which holds 65% of the woodland feature; Quinag Estate (pronounced kuun-yag), owned by the John Muir Trust (JMT) (10% of the woodland); and North Assynt Estate, owned by Assynt Crofters’ Trust (ACT) (20% of the woodland). See map at Annex 1. The deer population is managed by the 12 properties of the Assynt Peninsula Sub-Group (APSG) which covers an area of 18,000 hectares. See map at Annex 2.

8. The policy context within which we are trying to address the deer management issues on

this designated site is summarised in Annex 3. In addition there is a legislative requirement under the Habitats Directive to secure favourable condition of European protected sites (Natura sites). There is a further Scottish Government commitment to maintain efforts to halt biodiversity loss and to restore and enhance ecosystems under the Scottish Biodiversity Strategy.

Brief history

9. There is a long history of failed attempts to reconcile differing deer management

objectives to get the key properties to work together to manage the deer population down to levels that allow the woodland to recover. This is summarised in a timeline (Annex 4).

10. In short, there had been a period of 5 years (2008 to 2013) during which time attempts

were made to secure the management of deer on the protected area via S.7 Agreement. These attempts were initially with just the Ardvar Estate and JMT but latterly also involving ACT. In early 2014 we informed Scottish Government that mediation attempts between Ardvar Estate and JMT had failed due to tensions created by fundamental differences over deer management and that we were heading towards imposition of a S.8 Control Scheme.

11. In May 2014 the SNH Board agreed Management Team’s preferred option for moving

the woods into unfavourable recovering condition. This was a twin-track approach of fencing and deer control. It involved a series of fenced exclosures (to be funded through the Scottish Forestry Grant Scheme) on all three properties accompanied this time by a S.7 Agreement across the whole of the APSG area. A key feature of the proposed approach was that it would address the long-term woodland management needs after fencing was removed. It was acknowledged that if the S.7 failed, S.8 may be required at some stage to implement the proposed management solution. This message about potential imposition of S.8 if there was failure to agree a S.7 was, and continues to be, promoted to all parties.

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12. Initial work was done in 2014 to develop a Woodland Management Plan and agree fenced enclosures with the three properties. We appointed a contractor to develop detailed options. The APSG was given the task of developing a DMP for the whole of the peninsula. This was set within the context of the Rural Affairs and Climate Change Committee’s (RACCE) expectation that all Deer Management Groups (DMG) would have a competent DMP in place by 2016 which delivers public benefit as well as collaborative deer management.

13. A Woodland Management Plan was agreed in March 2015. There was less success

with the DMP as a result of disagreement, both within the group and between the group and SNH. In order to move things forward, in August 2015 we commenced a statutory 6 month consultation to secure a voluntary S.7 Control Agreement. Three months into the consultation, we were aware of reservations about the S.7 process and distrust between parties was still evident, signalling that it would be difficult to get agreement. SNH Chairman Ian Ross met with all three of the key parties to discuss issues and concerns, to provide reassurance and to encourage parties to engage with the S.7 approach.

Current position

14. By the end of the statutory 6 month period, we had received just 3 out of 12 signatures.

At a meeting on 28 April 2016, in a final attempt to get parties to sign to enable the SNH Board to consider whether further regulatory action might be required under S.8, we received no further signatures. Those who attended the meeting confirmed their opposition to signing S.7. There are two main reasons for parties not signing. There are those with a principled objection to signing a voluntary agreement which has behind it the threat of regulation, and those who do not wish to sign an agreement unless all parties do so.

15. A last chance plea came from APSG at the 28 April meeting to be given an opportunity

to demonstrate it can deliver the required cull without the need for a S.7 Agreement. Based on the unanimous view of the group, a perceptible change in attitudes in working collaboratively and a need to exhaust every avenue through the voluntary approach, we agreed to give APSG a short period to agree a way forward.

16. In early May we received a ‘statement of intent’ from the Chair with agreed cull targets

for stags, hinds and calves for this year and next, broadly in line with what we had apportioned for each property. A deer count in spring 2016 showed a deer population density on the Assynt peninsula of 10 deer / km 2. Our overall objective for the APSG is an initial density of 7 deer / km 2 across the peninsula. This is a maximum density which was agreed by APSG during the S.7 Agreement discussions. This population should deliver venison and sporting income within the APSG, whilst providing a basis for managing impacts on the woodland. While the majority of properties have committed to deliver the required cull over the next two years to achieve the population model deer density, Ardvar Estate is committing to only 55% and 43% of the respective stag and hind culls that are required for this property. This is a shortfall in the overall deer cull of 10% which over two years (i.e. by spring 2018) would deliver a population density of 7.5 deer / km 2.

17. We need to consider whether a shortfall of 0.5 deer / km 2 in the overall deer density

population target by 2018 is significant or not in achieving the objective of managing local grazing pressures so that this special wood can thrive once fences come down. We also need to ensure that we have a route to deal with excessive grazing outwith the fences.

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Significance of current position

18. We consider that 0.5 deer / km 2 above the target deer density of 7 deer / km2 by the end

of the two year period is not significant in the context of the overall APSG area. On a numerical basis only, 0.5 deer / km 2 would lie within the +/- 10% margin error for deer counts, which is acceptable. It is however potentially significant in the context of the deer population on Ardvar Estate where there is currently evidence of woodland regeneration occurring. Overall, Ardvar Estate is proposing only 55% and 43% of the respective stag and hind culls that SNH apportioned for this property. We have agreed a twin-track approach of fencing (to address the more immediate needs of the woodland) and deer management. There is a risk that if low culls are taken, and a high population or concentration of deer remains within the woodland area this will impact on the areas of regenerating woodland outside the fences. The key question is whether the cull proposed will deliver the required habitat response. This will be determined through herbivore impact monitoring. Baseline monitoring is being established now in advance of the forthcoming stag and hind seasons and we will get an early indication of habitat condition and further damage to the woodlands next spring.

19. It may take an additional year to determine the efficacy of the currently proposed

population model, the impact of the fencing (both within and outwith the fences) and the deer culls before we can ascertain the impact of the deer culls as agreed by APSG. We may have to adjust the deer density population model on the back of results from the herbivore impact monitoring, and in light of the changes that the fencing and deer culls will make. This is an adaptive management approach to addressing the issue of the unfavourable condition of the designated site to ensure recovery of the protected woodlands.

Options

20. An adaptive management approach can be either voluntary or regulatory. While we

welcome the growing engagement of group members, we are also very conscious of the difficult history, unresolved issues and tension between the three key properties. There are two options: one is to seek to regulate now through S.8; the other is to allow the group until March/April 2017 to demonstrate that it can manage the deer population in a collaborative and co-operative manner. Both options are explored in more detail below, together with the associated risks and benefits.

Option 1: regulate now using Section 8 Control Scheme

21. Pros: pursuing the regulatory approach now sends out clear messages to the deer sector

of strong leadership from SNH; the regulatory approach underpins a collaborative approach to deer management and the S.7/8 process is the Government’s primary tool for intervention; it is a clear process leading quickly to the status ‘under assured management’ including the necessary rigour to meet Natura requirements of ‘unfavourable recovering’ condition; it would test the S.8 legislation and provide lessons for future cases.

22. Cons: regulation through S.8 is likely to undermine the DMG which could result in long

term difficulties in delivering collaborative deer management in this area; voluntary fencing plans funded by applications to FCS for Scottish Forestry Grant Scheme as part of the twin-track approach would be put at risk; a regulatory approach would be much more costly of staff time; regulation ignores a plea from a community group to be given a last chance to show what it can do and there would be significant PR risks attached to that; there is a risk of legal challenge to a S.8.

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Option 2: allow APSG a further 10 months to deliver

23. Pros: it places more responsibility on the properties to get ‘buy-in’ within APSG and from

the wider community; it sits comfortably with the Scottish Government’s community empowerment agenda; it would also likely take fewer SNH resources in the longer run, though the resource requirement would be more difficult to predict.

24. Cons: There is a history of non-delivery; the APSG proposal is not legally binding or

enforceable; Ministers risk legal infraction proceedings if the site continues to deteriorate; the Ardvar Estate deer cull proposal is below the required cull level to deliver an initial deer density of 7 deer / km2, only habitat monitoring will provide information about adequacy; there is uncertainty over whether or not we would need to re-set the clock if we had to re-start the S.7/8 process in the event that this approach fails hence further lost time in getting the deteriorating woodland issue addressed; there is a reputational risk to SNH in being seen by SG, the deer industry and the voluntary sector to be weak.

Balancing of risks and benefits

25. One of the biggest risks is that the proposal put forward by APSG doesn’t tie any of the

parties into anything, whereas S.7/8 does. We are relying on the good will and determination of the APSG to make this work. This in the face of several failed attempts to get parties to agree where there are unresolved tensions and distrust between some of the parties. Using the regulatory route now however, in the face of the Group’s current proposal will likely destroy the Group and push community-led voluntary deer control at this site back by several years.

26. There are potential reputational and PR risks with either option for both SNH and the

Scottish Government. We risk being seen to be weak and backing down from a difficult decision if we don’t regulate now through S.8. There was a clear appetite within the former RACCE Committee for testing the regulatory powers under the deer legislation to help inform the on-going discussions about managing Scotland’s deer population under the Land Reform agenda. Equally there are reputational and PR risks in ignoring a community-led proposal to try and manage the deer population in a climate where community empowerment is high on the political agenda.

27. If the voluntary approach fails, there may be an ultimate requirement to revert to S.7/8

and potentially reset the clock with further 6 month delay in securing assured management for the woodland. There is a risk of a complaint to Europe and potentially legal infraction proceedings due to the failed attempts to halt the deterioration in site condition.

28. To impose S.8 now will likely see the collapse of the APSG which will result in a

significant draw-down of staff time to manage the regulation of deer control; we will also likely need to serve Management Agreement[s], possibly backed up with Land Management Order[s], to ensure that the fencing plans are implemented. Equally, if we give the voluntary approach one last chance, we will need to play an active role and oversee implementation of the DMP. On balance, the staff time required to support the voluntary approach is likely to be much less in the short to medium term and potentially also in the longer term.

29. While there is a perceptible change in attitude within the group, there are still some

fundamental differences in approaches to deer management and there is still a tension between parties, for example over out of season authorisations. The proposed deer cull

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is 10% below our target of an initial population of 7 deer / km2 due to the lower than requested cull target commitment of Ardvar Estate. This in itself may not be significant for the wider APSG area but it may have implications for the designated woodland. There will be areas of regenerating woodland outwith the fenced exclosures which will be vulnerable to deer grazing. The success of the proposed approach can only be measured through herbivore impact monitoring and we would need to adjust the target population model (and hence deer cull targets) if monitoring results were showing no change in condition, or further deterioration.

30. An adaptive approach to management can be either voluntary or regulated. Currently

there is a functioning, proactive deer management sub-group. The voluntary approach will more easily allow and encourage the Group to work collaboratively to achieve the required deer population on an adaptive management basis. This suggests that the community-led approach may currently stand a better chance of success than the regulatory approach.

Recommendation

31. In balancing the above risks and benefits, we recommend that the Board endorses

Option 2 and allows the APSG to have one last chance to manage the deer population

on the Assynt peninsula outwith the regulatory framework of a S.7 Control Agreement.

The APSG will need to deliver the following by March/April 2017:

A coherent Deer Management Plan that delivers public benefit as well as

collaborative deer management.

A DMP that is designed to bring the woodland into ‘favourable condition’ with clearly

defined methods for monitoring and delivering this.

The overall stag and hind cull targets as specified by SNH for the 2016/17 season

are met.

32. In addition, the fencing plans will need to be implemented on Ardvar Estate, the North

Assynt Estate (Nedd Common Grazings) and on Quinag Estate (Unapool Common

Grazings).

33. A further recommendation is that should APSG fail to deliver the above by March/April

2017, this would trigger the SNH Board to seek to move to regulation for an individual

property, or properties, where there is clear evidence of failure to deliver.

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Annex 1: Site map showing key properties

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Annex 2: Map showing APSG area

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Annex 3: Policy Context

1. Deer management in Scotland is carried out on a voluntary basis. In legal terms, wild deer belong to no-one but they can be taken by the owner of the land on which they are present. In a broader sense they also represent a resource for the people of Scotland and as a result deer management involves balancing a range of interests.

2. In 2011, following the passing of the Wildlife and Natural Environment (WANE) Act,

the legislation governing the management of wild deer in Scotland was updated to reflect the changing patterns of land management and evolving Government policy in this area. Of particular concern at that time was the need to ensure that deer welfare was not compromised and that local deer management arrangements could be improved.

3. When passing the WANE Act, the Scottish Parliament confirmed its desire to see

wild deer management principally delivered on a non-statutory basis. However, they recognised that better guidance and support was required for land managers, to ensure that deer management was proactive and that the backstop powers for when voluntary mechanisms fail are credible and effective.

4. More recently in 2014, the Minister and the Rural Affairs Climate Change and

Environment Committee (RACCE) Committee indicated their support for the continuation of the voluntary approach to deer management, subject to further review in 2016 of its effectiveness in delivering public objectives, including environmental, economic and social objectives.

5. In the wider context, scrutiny of deer management by the RACCE Committee in the

last Parliament was strong. The Committee made it clear that they wished to see a 'step-change' in collaborative deer management by March 2016. New deer management provisions feature significantly in the Land Reform (Scotland) Act 2016 which was passed in the Scottish Parliament before the end of the last session.

6. SNH’s principal intervention powers under the 1996 Act are the voluntary deer

Control Agreement, made under Section 7 and the compulsory deer Control Scheme made under Section 8. There are currently nine Section 7 Control Agreements in Scotland. Powers under Section 8 to impose a deer Control Scheme have never been tested.

7. Launched in November 2008, Scotland’s Wild Deer: A National Approach is a 20 year vision for wild deer management. The WDNA vision seeks to achieve the best combination of benefits for the economy, environment and people, while acknowledging that healthy ecosystems underpin sustainable economic growth. Where resolving tensions between priorities at the local level is not possible and Government intervention is needed, this intervention will prioritise maintaining healthy ecosystems.

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Annex 4: Timeline

2008 - Woodland Profile Survey - highlights herbivore pressure at Ardvar.

2009 - Voluntary Section 7 Control Agreement (S.7) over 5 years established by the Deer Commission for Scotland (DCS) between Ardvar Estate and JMT. ACT declined to participate.

2012 - agreement breaks down and is deemed to have failed.

May 2013 - all three properties invited to join new S.7. Agreement is not secured and a subsequent attempt at professional mediation also fails.

Early 2014 - Minister for Environment Paul Wheelhouse MSP informed that mediation attempts between JMT and Ardvar Estate had failed and case was heading towards imposition of a Section 8 Control Scheme (S.8).

May 2014 - SNH Board agreed Management Team’s preferred option to move the woods into unfavourable recovering condition. Involved series of fenced exclosures on all three properties accompanied by a S.7 across the whole of the APSG area. Key feature of proposed approach was that it would address the long term woodland management needs after fencing was removed. Accepted that if this was declined, S.8 may be required at some stage to implement proposed management solution. SNH Board wished message to be promoted to all parties and to include a clear steer about the possible use of Land Management Orders and S.8. September 2014 - relations re-established with the three properties; native woodland adviser contracted to develop Woodland Management Plan, including fencing proposals.

March 2015 - Woodland Management Plan and fencing proposals agreed; negotiations commenced for implementation of fencing plans with property owners (and crofting common grazing occupiers).

June/July 2015 - APSG failed to secure agreement for a Deer Management Plan across the wider Assynt peninsula amid disagreement within the group and between the group and SNH.

August 2015 - we notified our intention to seek a S.7 signalling the start of a statutory 6 month consultation period in which to secure a voluntary Agreement. Three months into the consultation, reservations about the S.7 process and distrust between parties was signalling that it would be difficult to get agreement.

October 2015 - SNH provided Environment Minister Dr Aileen Macleod MSP with a briefing on Ardvar situation in advance of giving evidence to the Parliament's RACCE Committee on the deer provisions within the Land Reform Bill.

November 2015 - SNH Chairman met with representatives of ACT to listen to concerns over S7 and explore underlying reasons. Chairman met separately with owner of Ardvar Estate later that month to listen to his views and concerns. Chairman also had dialogue with JMT over the Ardvar situation in August 2015 at a stakeholder meeting.

January 2016 - SNH Chairman and Director of Operations briefed the Environment Minister.

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February 2016 - by end of the 6 month period we had only 3 signatories; broad consensus with S.7 underlying aims and objectives but members unwilling to commit until after a spring deer count.

March 2016 - count maps, figures and proposed cull targets provided to APSG. Members again asked to sign S.7 but this yielded no additional signatories.

28 April 2016 - final attempt to get parties to sign S.7 to enable the SNH Board to consider whether further regulatory action required under S.8. No further signatures received and remainder confirmed their opposition to signing S.7.