Legal and Advisory

It's an offence to intentionally or recklessly take, damage, destroy or interfere with a nest of any wild bird while it is in use or to obstruct or prevent any wild bird from using its nest

The relevant law in Scotland is The Nature Conservation (Scotland) Act 2004 (Part 3, schedule 6) which, by amending the Wildlife and Countryside Act 1981, makes it an offence:

to intentionally or recklessly take damage or destroy or otherwise interfere with the nest of any wild bird while it is in use or to obstruct or prevent any wild bird from using its nest.

Applies to demolition, repair and renovation

This law applies to all birds and so may affect building demolition, repair and renovation when carried out during the nesting season.

It is essential to note that it is not only the work itself but also the erection of scaffolding, if this stops a bird from getting to its nest.

Ignorance of the law is not a defence and it is the responsibility of owners, factors and contractors to ascertain that no birds will be disturbed or hindered when works are carried out during the nesting season, and to programme work accordingly.

BS 6187 2000 (paragraph 11.5, Flora and Fauna), warns that:

the Wildlife and Countryside Act (46) covers the protection of flora and fauna and contains schedules of protected species, the provisions of which should be taken into account. The effect of the Act is the possible disruption of the demolition programme, as the Act makes it an offence to disturb a nesting bird, and so consideration should be given to the timing of demolition operations to avoid such potential for disturbance.

Local Authorities are constrained by Part 1 of the Nature Conservation (Scotland) Act 2004, which imposes a duty on all public authorities to further the conservation of biodiversity.

There are several species that nest in or on buildings. Whilst it is easy to spot the nests of kestrels, starlings, sparrows, blue tits, house martins and swallows, swift nests are harder to spot, as they would be inside the fabric of the building, often under the eaves, but also in other holes/cavities.

Find out more about where swifts nest.

The significance of this law is that it can no longer be a defence to argue that you did not intend to destroy or obstruct a nest site and that the action was just an unfortunate result of the works being carried out.

What are the implications?

It is the responsibilitiy of all concerned in a repair, renovation or conversion project to check the building for evidence of nesting birds; So this includes the project manager, clerk of works, the scaffolders and workmen.

If you, as a member of the public, notice a contravention (swift nest site either being demolished or blocked) phone 101 and explain the roblem - do not take "no" for an answer and have the relevant act ready to quote. Not all police officers are on the ball with this legislation. Be prepared to educate them but you may be pleasantly surprised when they know what you are talking about. You must be prepared to insist that it cannot wait until tomorrow (as the young birds may starve).

On the other hand you must be sure of your observation (that a nest site is blocked) or you could be blamed for obstructing the contract!

Legally, what work cannot be undertaken

Demolish a building with an active swift nest site in it
Erect scaffolding that would prevent a swift getting to its nest
Strip out a roof over an active swift nest
Replace soffits/gutters over an active swift nest site
Block the entrance to an active swift nest site in any way
Lay loft insulation in such a way as to block access to or to cover a swift nest site
Carry out internal loft repairs which would interfere with or disturb an active swift nest site

What work can be done, with care

Carry out minor repairs that do not require extensive scaffolding. For example scaffolding for access to a chimney or for a smaller roof/gutter repair can be placed so as not to block a nest site.
Window replacement (unless of course there is a nest in a gap beside a window) – scaffolding which finishes about 1m below nest sites at eaves level will not prevent swifts from getting to the nest
Short term repair – e.g. painting where you can leave access to a nest site and limit duration of work each day, or erect scaffolding and remove it within a day

Before you start any development work

Contractors have enough to worry about, and the possibility of a swift nest site popping up may understandably be seen as a nuisance. But being prepared makes it less so.

For major works, make sure that local biodiversity officers or nature conservation officers are included in the early consultation list
If an ecologist is employed (on larger projects, or where there could be an issue with bats, for example) ensure that swifts are included in the check list
Make all site operatives aware of the company’s responsibility with regard to all birds as part of their general briefing/toolbox talks
For smaller, householder, projects, be aware of swifts. If they are seen (between May and September) around the buildings, take extra precautions and survey. Swifts’ habit of flying around buildings where they nest in “screaming parties” makes them easy to spot in the locality. Screaming parties are most often seen and heard around 8.30am and around 9pm. Seeing exactly where they go onto a nest is harder!

Who to consult if in doubt

Concern for Swifts (Scotland)
Local Biodiversity officers
RSPB local office
SOC members
Local Swift interest groups

The legal buck does stop with the contractor.

Biodiversity Duty

Note on the biodiversity duty of every public body and office holder i.e. Part 1 of the Nature Conservation (Scotland) Act 2004, which imposes a duty on all public authorities to further the conservation of biodiversity. While this is a bit vague, and much of it relates to species and habitats with EU protection, it does make it clear that this is a DUTY, not a possibility.

The swift is a priority species on the Scottish Biodiversity list. Also several local authorities have a swift species action plan although several of these seem to be fairly moribund.

It can be argued that there is a duty on local authority officers to:

Keep a record of areas where swifts are known to nest
Scan planning applications for renovations of conversions to ensure that existing swift nest sites are protected
Ensure that applicants are advised of the need to protect swift nest sites and/or create new ones to replace any eventual losses
Require developers to insert swift nest sites into new buildings in areas where swifts are observed to nest or where screaming parties have been recorded

How to report an issue

If you, as a member of the public, notice a contravention (e.g. a swift nest site either being demolished or blocked) and are positively sure that the law has been broken, phone 101 and explain the problem, stating the Nature Conservation (Scotland) Act 2004. Alternatively, contact your local authority and report the case to the Biodiversity Officer or Nature Conservation Officer.

Read the RSPB fact sheet on guidnace for threatened sites (PDF 30K)