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10.0 - ADDITIONAL GUIDANCE ON NUISANCES ALREADY COVERED BY THE ENVIRONMENTAL PROTECTION ACT 1990
10.1 This section deals with a number of areas where there were comments made at the consultation stage suggesting that the nuisance regime should be extended but where there are already adequate privisions under the Environmental Protection Act 1990 to deal with the issue.
Feral Birds
10.2 There were comments made at the consultation stage suggesting that the nuisance regime should be extended to include feral or wild birds.
10.3 The majority of the public health problems caused by wild birds are associated with pigeons, gulls, blackbirds, starlings, and house sparrows. There are both nuisance and health implications with over 800 reported transmissions of a pathogen (mostly C. psittaci) from feral pigeons to people. Similarly, there has been reports of hundreds of cases of the histoplasmosis disease in people acquired via the airborne route during work on communal roosts of birds in urban areas.
10.4 Beside the harm some wild urban bird species (mostly feral pigeons) cause to buildings by their activity and droppings, their nesting sites can be the source of abundant ectoparasites (such as argasid ticks, mites, bugs and fleas) that produce allergic reactions in people. Also, certain microorganisms pathogenic to people have been found to be associated with wild urban birds:
- some arboviruses (the agent of diseases such as St. Louis encephalitis virus and West Nile virus);
- Chlamydophila psittaci (the etiological agent of ornithosis);
- Borrelia burgdorferi sensu lato (the agent of Lyme disease);
- Campylobacter jejuni (the agent of campylobacterosis);
- Salmonella enterica serovars Enteritidis and Typhimurium (the agents of salmonellosis);
- Histoplasma capsulatum (the agent of histoplasmosis); and
- Cryptococcus neoformans (the agent of cryptococcosis).
10.5 Cases of human disease acquired directly from urban birds or from their habitats have been reported for ornithosis, histoplasmosis, salmonellosis, campylobacterosis, mycobacteriosis, cryptococcosis, and toxoplasmosis.
10.6 Section 79(1)(e) of the EPA provides powers to deal with deposits or accumulations of wild bird droppings where the deposit or accumulation of droppings comprises a nuisance or is prejudicial to health. The outline above confirms the health risk from droppings as well as the nuisance value. Case law supports the use of this provision for equivalent nuisance/threats. In Coventry City Council v Cartwright (1975), the Divisional Court held that section 79(1)(e) of the 1990 Act had the underlying conception of "an accumulation or something which produces a threat to health in the sense of a threat of disease, vermin and the like". In R v Carrick District Council, ex parte Shelley (1996), the use of section 79(1)(e) was applied to sewage-related waste on a beach.
10.7 Section 79(1)(e) has the benefit of not being linked to premises- thus any deposit or accumulation wheresoever situated is capable of abatement, and there is considerable flexibility to enable local authorities to respond to a wide variety of situations. Local authorities could go further and require as a preventive measure, the owner of affected premises to erect "don't feed the birds" notices so as to prevent the recurrence of birds being attracted into the area/premises, and thereby reducing the risk of the nuisance recurring. Any measures specified in the abatement notice would require to be in accordance with the law, in particular, the provisions of the Wildlife and Countryside Act 1981 would have to be considered. Part I of the 1981 Act creates a number of offences in relation to wild birds. Certain of those offences are not committed where the otherwise criminal act is carried out under the authority of a licence, granted under section 16 of that Act. In this way, abatement in the form of anti-nesting/roosting netting, etc would have to be undertaken before/at the end of the bird breeding/nesting season.
10.8 In addition local authorities have powers under section 201 of the Local Government (Scotland) Act 1973 to make byelaws for the good rule and government and prevention and suppression of nuisance for the whole or any part of or area within their local authority area and could use this to control feral bird nuisance.
10.9 Additionally section 79(1)(a) of the EPA could be used to abate nuisance caused by premises covered with bird droppings, where those premises are in such a state so as to be prejudicial to health or a nuisance. Roosting birds on the roof of a building whose droppings fall onto balconies below, or a derelict building which may not in itself comprise a risk, but because of the extent of the droppings within it could give rise to prejudice to health, problem are both situations capable of attracting the section 79(1)(a) provisions. In this case it may be appropriate to require bird-proofing of premises to abate or prevent the occurrence or recurrence of a nuisance. It should be stressed that the use of section 79(1)(a) is limited as to whether one can identify the person responsible for the premises covered in the bird droppings themselves. The nuisance is the droppings not necessarily the birds sitting on the buildings.
10.10 The control measures appropriate to feral birds include:
a) restricting feeding at public places;
b) inhibiting breeding on buildings, by mechanically blocking the loft orifices and perching sites in, on and below the roofs, using netting, spikes, repellent gels and electroshock deterrent systems;
c) collecting and inactivating avian (pigeon) eggs;
d) controlling scavenging birds, such as gulls and corvids, on landfill sites;
e) controlling seagulls at harbours and airports (if their numbers create hygienic and safety problems);
f) controlling and sanitizing large communal roosts of birds in city parks - for example, effective decontamination of the soil under communal roosts infected with sapronotic fungi ( H. capsulatum) is possible by repeated (3-4 times) use of 3% formaldehyde;
g) reducing the number of nest boxes available for starlings;
h) trapping birds (in nets or various bird traps) and euthanizing the captured birds, where permitted;
i) sterilizing birds chemically, with a treated grain bait, where permitted;
j) dispersal of birds by the use of tape strips ; strobe lights and flashlights ; fireworks, rockets and shell crackers ; shooting, pistols, explosives and screamers; tape-recorded distress or scary calls of birds (such as those of owls); falcons and other trained raptors; water-mist sprayers; plastic netting; and habitat modification, by thinning , clearing or even eliminating the vegetation (such as reeds, brush and trees) on communal roosts.
It should be stressed that the above suggestions could be construed as prima facie offences under the Wildlife and Countryside Act 1981. Therefore local authorities are advised to approach the Scottish Government for a license under the terms of that Act before commencing any bird control measures.
10.11. It is noted that Dumfries & Galloway Council are undertaking a pilot exercise on bird control by destroying nests following their National bird Summit- " Gulls:Friend or Foe" in June 2008. This will involve all local enforcement agencies including the police working together using existing legislative controls. The Scottish Government will monitor the outcome of this exercise and consider updating this guidance to share best practice.
Bell Chimes
10.12. The incidence of bell chimes from churches and clock towers has been subject to complaints mainly due to hourly chimes throughout the night. Although bell chimes can be construed as a Statutory Nuisance and the 1990 Act requires the local authority if satisfied it is, to issue an abatement notice, this may require either abatement, prohibition, or restriction on the occurrence or recurrence of the nuisance. The key is that the local authority may (and should) pursue a proportionate response in each case. Where there is conflict within the local community of whether a nuisance exists, there is always compromise through mediation. The European Union Network for the Implementation and Enforcement of Environemntal Law has produced a report on its "informal resolution of environmental conflicts by neighbourhood dialogue" project, which maybe helpful. This can be downloaded at : http://wwwec.europa.eu/environment/impel/pdf/brochure/dialogue_en.pdf
High Hedges
10.13 See paragraph 4.13.
Noise
10.14. Noise is a far reaching issue, although no longer regarded as the forgotten pollutant, as WHO guidance now indicates in its direct connection to potential adverse mental and physical health. Guidance on dealing with noise issues is covered elsewhere. These are :
Guidance on the Creation and Maintenance of Effective Noise Management Policies and Practice for Local Authorities and their Officers in Scotland at : http://www.scotland.gov.uk/Publications/2005/10/2192231/22317
Guidance on Noise Nuisance (Antisocial Behaviour etx. (Scotland) Act 2004 at : http://www/scotland.gov.uk/Publications/2004/1020151/45699
Dog Barking
10.15. One example of a common noise complaint is dog barking. There is guidance within the two guides started above, and some local authorities have advised they have successfully used the Antisocial Behaviour legislation to either issue a FPN or even seize a dog as noise making equipment! If you are unable to obtain a noise measurement which breaches the stated levels in the schedule to The Antisocial Behaviour (Noise Control) (Scotland) Regulations 2005, you will not be able to issue a FPN under that legislation. However if Statutory Nuisance is established an abatement notice should be issued, which is not complied with can dealt with using the FPN procedure described in this guidsance.
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