Nuisance provisions of the Public Health etc (Scotland) Act 2008: guidance

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 1990 Act. 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 nuisance 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 ¹ . It is unlikely that any of the insects included in the Schedule would occur in such locations and circumstances that would constitute a nuisance. The 2008 Act also excludes any site of special scientific interest ² (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 includes land covered with water.

5.4 This provision is intended to provide local authorities with a remedy to nuisances from insects (whether naturally occurring or caused by human activities) it may be used where 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 What is an insect in terms of the 2008 Act? There is no formal definition in the Act. In the common use of the term 'insect', insects belong to the phylum Arthropoda that is divided into a number of classes. These include the:

• Crustacea (crabs, crayfish, prawns)
• Arachnida (spiders, mites, scorpions)
• Myriapoda (millipedes & centipedes)
• Insecta (insects)

Modern insect classification divides the Insecta into some 30 orders and some of the more common orders are:

• Dictyoptera - cockroaches
• Isoptera - termites
• Siphonaptera - fleas
• Diptera - flies and mosquitoes
• Coleoptera - beetles
• Hymenoptera - wasps, bees, ants, sawflies.

5.6 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 is a defence to prove that the best practicable means are being 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

5.7 One of the key issues in dealing with the new insect nuisance is identification of the person responsible for the nuisance on whom any abatement notice should be served. Section 80(2) of the 1990 Act provides that the abatement notice shall be served on the 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.

5.8 In the case of insects this raises a number of procedural problems. Ascertaining the source of insect nuisance can often be a difficult and lengthy process as flying insects can travel considerable distances. It may also be the case that premises that have high levels of insect infestation are not actually the source of the nuisance itself. Once the 'premises' has been identified, the local authority will have to give consideration as to whether or not a person responsible for the nuisance can also be identified.

5.9 However it should be remembered that the 1990 Act provides for the service of a notice in circumstances where a nuisance may not currently exist (or cannot be proved) but the conditions at a location indicate that a nuisance is likely to occur.

5.10 There are a number of insect species that 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 disease (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).

5.11 The Scottish Government recommends that local authorities visit a potentially affected area as soon as possible after receiving a complaint of insect nuisance 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 5.0 below.

FIGURE 5.0 - INVESTIGATION OF INSECT COMPLAINTS

5.12 The type of insect and the specific characteristics of the case will have a significant impact on how the statutory nuisance is determined - for example a complaint of insects that 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 1990 Act in England and Wales by the CNE Act. The guidance supporting the insect nuisance provisions introduced by the CNE Act includes some numerical guidance on fly nuisance and extracts have been included in the Technical Guidance in Appendix 1.

5.13 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 a 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, nature, bodies of water, etc. Insecticides should therefore be chosen with care and regard for the Defra Code of Practice for using Plant Protection Products (available at www.pesticides.gov.uk).

5.14 Appendix 1 to this guidance included further technical information on applicable controls and good practice for insect management.

5.15 There are a number of overlaps between the insect provisions and other legislative provisions of the 1990 Act or other regimes that should also be considered when dealing with insect nuisance:-

a) Part 5 of the 2008 Act (when implemented) will allow local authorities to serve notice where any premises is infested, infected or contaminated and it is necessary to carry out steps to prevent spread of disease or contamination.

b) Poultry houses / animal husbandry units - this could be covered by the Pollution Prevention and Control (Scotland) regulations 2000 ( PPC) if the farm is big enough. Alternatively section 79 (1)(a) (premises in such a state as to be prejudicial to health or a nuisance) or section 79 (1)(f) any animal kept in such a condition as to be prejudicial to health or a nuisance) may apply.

c) Sewage treatment works - it is proposed to develop a new Sewerage Nuisance Code under the Water Services (Scotland) etc Act 2005.

d) Manure / slurry storage areas - this could be covered by PPC if the farm is big enough otherwise section 79 (1)(a) or section 79 (1)(e) (any accumulation or deposit which is prejudicial to health or a nuisance) may apply.

e) Animal housing - this could be covered by PPC if the farm is big enough otherwise section 79 (1)(a) or section 79 (1)(f) (any animal kept in such a condition as to be prejudicial to health or a nuisance) may apply.

f) Stagnant ditches and drains (i.e. containing putrid and anoxic water) - the new water nuisance provisions may be applicable.

g) Landfill sites / refuse tips - these should be covered either by PPC or by the waste management licensing provisions of Part II of the 1990 Act otherwise section 79 (1)(e) might have application.

h) Waste transfer premises - these should be covered either by PPC or by the waste management licensing provisions of Part II of the 1990 Act otherwise section 79 (1)(e) might have application.

i) Trade or business premises (e.g. contaminated goods, kitchen areas) - section 79 (1)(a) may apply otherwise health and safety or food safety legislation might have application.

j) Slaughterhouses - section 79 (1)(a), health and safety or food safety legislation (including specific slaughterhouse hygiene requirements) may apply.

k) Used car tyre recycling businesses - section 79 (1)(a), health and safety legislation or the waste management licensing provisions of Part II of the 1990 Act might have application.