Nuisance provisions of the Public Health etc (Scotland) Act 2008: guidance
Procedural guidance on the statutory nuisance provisions outlined in the Public Health etc. (Scotland) Act 2008.
10.0 - ADDITIONAL GUIDANCE ON NUISANCES ALREADY COVERED BY THE ENVIRONMENTAL PROTECTION ACT 1990 OR OTHER LEGISLATION
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 provisions under the 1990 Act or other legislation to deal with the issue.
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 feral 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 have been reports of hundreds of cases of histoplasmosis in people acquired via the airborne route during work on communal roosts of birds in urban areas. It should be noted that many wild birds are protected under the Wildlife and Countryside Act 1981 (see paragraph 10.9).
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 1990 Act 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. This section has the benefit of not being linked to premises - thus any deposit or accumulation wherever situated is capable of being a nuisance, and there is considerable flexibility to enable local authorities to respond to a wide variety of situations. 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 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.
10.8 Additionally section 79(1)(a) of the 1990 Act 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 and require preventive measures, such as bird-proofing of the building and erection of "don't feed the birds" notices. 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), are both situations capable of attracting the section 79(1)(a) provisions.
10.9 Part I of the Wildlife and Countryside Act 1981 creates a number of offences in relation to wild birds. Any measures specified in the abatement notice would have to be in accordance with the law. In particular, an abatement notice should not require anything which would be an offence in terms of the Wildlife and Countryside Act 1981 would have to be considered. Certain offences are not committed where carried out under the authority of a licence granted under section 16 of that Act.
10.10 The control measures that may be appropriate to feral birds depending on the particular circumstances 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 hygiene and/or 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.
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 reviewing this guidance to share best practice if required.
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. Where a local authority is satisfied that the bell chimes are a statutory nuisance, the 1990 Act requires the local authority to issue an abatement notice. The notice may require 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 as to whether a nuisance exists, there is always compromise through mediation. The European Union Network for the Implementation and Enforcement of Environmental 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://ec.europa.eu/environment/impel/pdf/neighbourhood_dialogue_final_report.pdf
10.13 See paragraphs 4.12 - 4.14.
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 etc. (Scotland) Act 2004 at : http://www.scotland.gov.uk/Resource/Doc/1052/0034507.pdf
10.15 One example of a common noise complaint is dog barking. There is guidance within the two documents referenced 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 a local authority is unable to obtain a noise measurement which breaches the stated levels in the schedule to The Antisocial Behaviour (Noise Control) (Scotland) Regulations 2005, it will not be able to issue a FPN under that legislation. However if Statutory Nuisance is established an abatement notice must be issued, which if not complied with can be dealt with using the FPN procedure described in this guidance.
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