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5.0 - INSECT NUISANCE PROVISIONS
Introduction
5.1 The new provisions for insect nuisance are included in section 109 of the 2008 Act. These controls are implemented by amendment of the EPA. The provisions are as follows:-
109 Insect nuisance
(1) Section 79 (statutory nuisances and inspections) of the Environmental Protection Act 1990 (c.43) (the "1990 Act") is amended as follows.
(2) In subsection (1), after paragraph (fa), insert-
"(faa) any insects emanating from premises and being prejudicial to health or a nuisance;".
(3) After subsection (5A), insert-
"(5AA) Subsection (1)(faa) above does not apply to insects that are wild animals included in Schedule 5 to the Wildlife and Countryside Act 1981 (c.69).
(5AB) For the purposes of subsection (1)(faa) above, "premises" does not include-
(a) a site of special scientific interest (within the meaning of section 3(6) of the Nature Conservation (Scotland) Act 2004 (asp 6));
(b) such other place (or type of place) as may be prescribed in regulations made by the Scottish Ministers.
(5AC) Before making regulations under subsection (5AB)(b) above, the Scottish Ministers must consult, in so far as it is reasonably practicable to do so, the persons mentioned in subsection (5AD) below.
(5AD) Those persons are-
(a) such associations of local authorities; and
(b) such other persons,
as the Scottish Ministers consider appropriate".
(4) In subsection (7), in the definition of "premises", after "land" insert "(subject to subsection (5AB) above)".
5.2 The purpose of this amendment is to allow action to be taken against any insect (other than those protected under the Wildlife and Countryside Act 1981) emanating from any premises (including land). A list of the species within Schedule 5 of the Wildlife and Countryside Act 1981 is contained within Appendix 1.The 2008 Act also excludes any site of special scientific interest (within the meaning of section 3(6) of the Nature Conservation (Scotland) Act 2004) from these controls and makes provision for Scottish Ministers to exclude other premises by regulation.
5.3 By virtue of schedule 1 of the Interpretation Act 1978 (c.30) the term land may include "land covered with water".
5.4 This provision is intended to provide local authorities with a remedy for nuisances caused by insect infestations (whether naturally occurring or caused by human activities). It may be used where the insects are prejudicial to the health of the occupiers of the premises but it is not meant to be used against most naturally occurring concentrations of insects on open land or in ways that would adversely affect biodiversity. The majority of insect species do not cause a nuisance, but are essential components of biodiversity and maintain ecosystems through pollination, soil maintenance and other functions.
Extent of Controls
5.5 The provisions apply to all premises (both commercial and residential) but in proceedings for an offence relating to the breach of an abatement notice, it shall be a defence to prove that the best practicable means were used to prevent or counteract the effects of the nuisance. The conditions that could be considered when evaluating whether best practicable means have been used are further discussed in Appendix 1.
Assessing Nuisance Complaints
5.6 One of the key issues in dealing with the new insect nuisance is identification of the person responsible for the nuisance, on whom the abatement notice should be served. Section 80(2) of the EPA provides that the abatement notice shall be served on the person responsible for the nuisance, unless:
(a) the nuisance is the result of a structural defect, in which case it should be served on the owner of the premises; or
(b) the person responsible for the nuisance cannot be found or the nuisance has not yet occurred, in which case it should be served on the owner or occupier of the premises.
5.7 In the case of insects this raises a number of procedural problems. Ascertaining the source of insect nuisance can sometimes be a difficult and lengthy process as flying insects can travel considerable distances. It may also be the case that premises which have high levels of insect infestation are not actually the source of the infestation itself. Once the "premises" has been identified, local authorities will have to give consideration as to whether or not a person responsible for the nuisance may also be identified.
5.8 There are a number of insect species which can cause nuisance seasonally, or when present in sufficient numbers. Some of the insects concerned may pose a public health risk due to the fact that they can carry infectious diseases (ie; vectors) but others may just present a nuisance. Examples of both include mosquitoes ( Culicidae), house flies ( Musca domestica), lesser house flies ( Fannia canicularis), fruit flies ( Drosophila spp), cockroaches ( Periplaneta Americana, Blattella germanica, Blatta orientalis), moth flies or sewage filter flies ( Psychoda spp and Tinearia alternate) and biting midges (Culicoides impunctatus).
5.9 The Scottish Government recommends that local authorities visit an affected area as soon as possible after receiving a complaint of insect infestation and suggests that this should be done at least within 5 working days of the complaint, in order to establish the extent and degree of the alleged nuisance. There are five key steps in the assessment of an insect nuisance complaint as outlined in Figure 5.1 below.
FIGURE 5.1 - INVESTIGATION OF INSECT COMPLAINTS
5.10 The type of insect and its specific characteristics of the case will have a significant impact on how the statutory nuisance is determined - for example, a complaint of insects which carry disease and pose a threat to public health may require to be assessed against a different threshold to a complaint based on nuisance alone. Nuisance controls were first introduced into the EPA for England and Wales by the CNE Act. The guidance supporting the insect nuisance provisions introduced by the CNE includes some numerical guidance on fly nuisance and extracts have been replicated in the Technical Guidance in Appendix 1.
5.11 Proper management and treatment programmes should be able to minimize most insect nuisance cases that arise. Identification of infestations in their early stages and management of the habitats and conditions in which insects proliferate are important control measures. It should not be assumed that killing insects is necessarily the most appropriate way to prevent or abate the nuisance. Environmental consequences (indirect as well as cumulative) of remedial action must be considered, such as the effects of insecticides if used, on the environment. Insecticides should therefore be chosen with care and regard should be given to the Pesticides Safety Precautions Scheme in their use.
5.12 Appendix 1 contains further technical information on applicable controls and good practice for insect management.
5.13 There are a number of overlaps between the insect provisions and other legislative provisions of the EPA or other regimes that should also be considered when dealing with the insect nuisance:-
a) Poultry houses / animal husbandry units - this could be covered by Pollution Prevention and Control (l PPC) legislation if the farm is big enough. Alternatively s79 (1)(a) (premises in such a state as to be prejudicial to health or a nuisance) or s79 (1)(f) (any animal kept in such a condition as to be prejudicial to health or a nuisance) may apply.
b) Sewage treatment works - it is proposed to develop a new Sewerage Nuisance Code under the Water Services (Scotland ) etc. Act 2005
c) Manure / slurry storage areas - this could be covered by PPC if the farm is big enough, otherwise s79 (1)(a) or s79 (1)(e) (any accumulation or deposit which is prejudicial to health or a nuisance) may apply.
d) Animal housing - this could be covered by PPC if the farm is big enough, otherwise you may be able to use s79 (1)(a) or s79 (1)(f). .
e) Stagnant ditches and drains (i.e. containing putrid and anoxic water) - the new water nuisance provisions may be applicable. .
f) Landfill sites / refuse tips - these should be covered either by PPC or by the waste management licensing provisions of Part II of the EPA. Otherwise s79 (1)(e) might have application.
g) Waste transfer premises - these should be covered either by PPC or by the waste management licensing provisions of Part II of the EPA otherwise s79 (1)(e) might have application.
h) Trade or business premises (e.g. contaminated goods, kitchen areas) - s79 (1)(a) may be of use. Alternatively , health and safety or food safety legislation may apply.
i) Slaughterhouses -s79 (1)(a), health and safety or food safety legislation (including specific slaughterhouse hygiene requirements) may apply.
j) Used car tyre recycling businesses - s79 (1)(a), health and safety legislation or the waste management licensing provisions of Part II of the EPA may apply.
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