Urban gulls and their management in Scotland: review

7 Review of the legislation surrounding control of urban gulls

This chapter provides a brief review of the legislation surrounding the measures that could potentially be used to mitigate against the perceived urban gull problems in Scotland. Each area of legislation that has the potential for utility in addressing perceived gull problems is outlined, together with areas of uncertainty and any measures that we took during this project to get further advice on key aspects. This is a specialist area of research, in which the authors did not have specific expertise from which to offer guidance, however. Rather, we have attempted to provide pointers towards issues that might merit further legal advice (see also Section 3.6 on the perceptions of Scottish Local Authorities of legislation and Section 8.3 for a summary of further research priorities). This section should be used as a source of guidance only: the wording used here does not necessarily reflect that of each act, and interested parties should refer to the full legislation documents and their wording (we have provided web references for these below wherever possible) and seek appropriate legal advice on these issues.

7.1 Legislation to protect wild birds in Scotland

The protection of wild birds in the UK was covered by the Wildlife and Countryside Act 1981, which is underpinned by the European Union ( EU) Birds Directive (79/409/EEC). The requirements of the Birds Directive to protect, manage and control all species of naturally occurring wild birds were met by the relevant sections of the Wildlife and Countryside Act ( WCA)1981. In Scotland, the WCA 1981 has been amended recently by the Nature Conservation (Scotland) Act 2004 (see: http://www.opsi.gov.uk/legislation/scotland/acts2004/20040006.htm).

Subject to the provisions of Part 1 of the amended WCA1981, it is an offence under Section 1 of the Act if any person intentionally or recklessly:

• kills, injures or takes any wild bird;
• takes, damages, destroys or otherwise interferes with the nest of any wild bird while that nest is in use or being built;
• at any other time, takes, damages, destroys or otherwise interferes with any nest habitually used by any wild bird included in Schedule A1;
• obstructs or prevents any wild bird from using its nest; or
• Takes or destroys an egg of any wild bird.

In addition to the three actions listed above, Article 5 of the Birds Directive also states that Member States should prohibit:

• Deliberate disturbance of any wild bird particularly during the period of breeding and rearing, in so far as disturbance would be significant having regard to the objectives of this directive; and
• Keeping birds of species the hunting and capture of which is prohibited.

Under Section 5 (1) of the amended WCA 1981, the use of certain methods for killing or taking wild birds is also an offence (refer to the Act for details of these methods).

Section 16 of the amended WCA 1981 gives the power to authorities (The Scottish Executive in Scotland, since devolution) to grant licences that permit the killing and taking of wild birds for certain reasons, however, when there is no other effective solution and on a selective basis and in respect of a small number of birds. The amended WCA 1981 also gives these authorities the power to amend the list of prohibited methods of killing or taking wild birds, by adding methods to, or omitting methods from the list. The availability of these additional powers stems from Article 9 of the Birds Directive, which states that Member States may derogate from the provisions of Article 5 (the killing and taking of wild birds or their eggs or nests) for certain reasons:

• in the interests of public health & safety;
• in the interests of air safety;
• to prevent serious damage to crops, livestock, forests, fisheries, and water;
• for the protection of flora & fauna;
• for the purposes of research and teaching, of repopulation, of re-

introduction and for the breeding necessary for these purposes; or

• to permit, under strictly supervised conditions and on a selective basis the capture, keeping or other judicious use of certain birds in small numbers.

Note that there is no provision to derogate from either the provisions of the EC Birds Directive or the amended WCA 1981 on the basis of noise, or damage caused to human property by gulls or their droppings (see section 3.6; see also section 7.4 below relating to gull noise and droppings and any human health risk).

7.1.1 General Licences

The Scottish Executive has issued four 'General Licences' in respect of the killing or taking or certain wild bird 'pest' species, including Great Black-backed Gull, Lesser Black-backed Gull, and Herring Gull. Other species of gull are not covered by the licences, with the exception of licence SEGEN/13 (below). The four General Licences in operation in Scotland currently are as follows:

• Licence SEGEN/10 authorises for the purposes of protecting any collection of wild birds and for the purposes of preserving public health or public safety or air safety any authorised person to kill or take gulls by shooting or by the use of a cage trap or net, or by any other method not prohibited by Section 5 (1) of the Wildlife & Countyside Act 1981; or to take, damage or destroy their nests; or to take or destroy their eggs.
• Licence SEGEN/22 authorises for the purposes of preventing the spread of disease and for the purposes of preventing serious damage to livestock, foodstuffs for livestock, crops, vegetables, fruit, growing timber, fisheries and inland water to kill or take gulls by shooting or by the use of a cage trap or net, or by any other method not prohibited by Section 5 (1) of the Wildlife & Countryside Act 1981; or to take, damage or destroy their nests; or to take or destroy their eggs.

For licences SEGEN/10 and SEGEN/22, an authorised person means:

• The owner or occupier, or any person authorised by the owner or occupier, of the land on which the action authorised is taken;
• Any person authorised in writing by the Local Authority for the area within which the action authorised is taken;
• Any person authorised in writing by any of the following bodies - Scottish Natural Heritage, a water authority or any other statutory water undertakers, or a district board for a fishery district.
• Licence SEGEN/13 (in addition to SEGEN/10), authorises an aerodrome manager or any person authorised by him to kill or take wild birds of the species Larus ridibundus (Black headed Gull), Larus canus (Common Gull) and Vanellus vanellus (Northern Lapwing) within the area bounded by the perimeter of the aerodrome, and to take and destroy their nests within that area. Three other species of wild bird are listed with regard to specific airports owned or leased by the Highlands and Islands Airports Limited, Civil Aviation Authority or the Ministry of Defence and these are Haematopus ostralegus (Eurasian Oystercatcher), Anser anser (Greylag Goose) and Numenius arquata (Eurasian Curlew).
• Licence SEGEN/23 authorises for the purposes of preserving public health or public safety or air safety, or preventing the spread of disease and for the purposes of preventing serious damage to livestock, foodstuffs for livestock, crops, vegetables, fruit, growing timber, fisheries, to kill gulls with the use of a semi-automatic weapon by licensed authorised persons.

These General licences are issued on an annual basis and do not require any specific application to be made to the Scottish Executive. Unless a person acts in accordance with the terms of any of these licences and for a purpose for which the relevant General Licence was granted, he/she commits an offence.

7.1.2 Specific Licences

The Scottish Executive will consider applications to use a method prohibited under Section 5 (1) of the amended Wildlife and Countryside Act 1981 if a problem arises that cannot be satisfactorily resolved by a method permitted under one of the General Licences. In the context of methods of potential use in the control of urban gulls, the use of poisonous substances ( e.g. paraffin oil for egg oiling) or stupefying baits fall currently into the category of requiring application to the Scottish Executive for a 'Specific Licence'.

7.2 Legislation surrounding littering and waste

7.2.1 Environmental Protection Act 1990 (c. 43)

Part III Statutory nuisances & Clean Air

The Environmental Protection Act ( EPA, available at: http://www.opsi.gov.uk/acts/acts1990/Ukpga_19900043_en_1.htm) 1990 enables Local Authorities and individuals to take action to secure the abatement of a 'statutory nuisance'. Section 79 of the EPA sets out what can and cannot be defined as a statutory nuisance and does not make special provision for noise/nuisance from any type of animal unless it is being kept in such a place or manner as to be prejudicial to health or a nuisance (see also the SCIEH guidance document on this at: http://www.show.scot.nhs.uk/scieh/environmental/enviropdf/StatutoryNuisance.pdf).

Part III of EPA 1990, as amended by the Environment Act 1995 Section 107, provides the current regulatory regime in Scotland for statutory nuisance. A statutory nuisance can include "premises in such a state as to be prejudicial to health or a nuisance" and "any accumulation or deposit which is prejudicial to health or a nuisance". If a statutory nuisance "exists, or is likely to occur or recur", Local Authorities can serve an Abatement Notice, requiring steps to be taken to abate the nuisance. Failure to comply with an Abatement Notice is an offence.

We have been unable to get conclusive advice on whether the definitions of statutory nuisance could be used (i) to enforce owners to proof building against gulls, (ii) to prevent individuals providing large amounts of food to gulls or other wild birds, such that droppings build up to substantial levels.

Part II Waste on Land

In the event that waste is stored outside a receptacle on any domestic premises (Part II Section 46) commercial or industrial premises (Part II Section 47), and is judged likely to cause a nuisance or be detrimental to the amenity of an area, the local authority, as Waste Collection Authority, has the power to issue a Notice. The Notice will require the occupier of the premises to provide at the premises, receptacles for the storage of waste, of a kind and number specified, and also specify the steps to be taken by occupiers of premises to facilitate the collection of waste from the receptacles.

Part IV Litter and related issues

Part IV of the EPA 1990 sets out legal provisions relating to litter. It does not provide a definition of litter as such, but rather defines the offence of littering as the throwing down, dropping or otherwise depositing and leaving of any thing in such circumstances as to cause, contribute to, or tend to lead to, the defacement by litter of a place to which the legislation applies. According to Defra (1999), 'litter' has a very wide interpretation, including wrappers, cans, bottles or packaging, food, small items (such as cigarette ends) and large items (such as bags of rubbish). Part IV can therefore be applied to the action of fly-tipping as well as littering, where the fly-tipped waste is deposited on places to which the litter legislation applies.

Section 88 of Part IV gives provision for fixed penalty notices for littering. The EPA has been amended with respect to littering and fly-tipping by the Antisocial Behaviour Act 2004 (Section 55). Councils, police and authorised officers of a waste regulation authority ( i.e.SEPA) are able to issue fixed penalty notices (currently set at £50) for littering. In order to issue a notice, these officers will need to have "reason to believe an offence has been committed". In relation to fly-tipping, Councils and SEPA officers are able to issue notices.

Section 93 of Part IV gives provision for Street Litter Control Notices to prevent accumulations of litter in and around premises. The EPA has been amended with respect to street litter by The Street Litter Control Notices Order 1991. Under the Street Litter Control Notices Order 1991 (as amended), these types of premises include, inter alia, premises used for the sale of food and drink. The occupier is responsible for keeping the front of the premises and a reasonable distance on either side (100m for fast food outlets) free from litter.

7.2.2 Environment Act 1995 (c. 25)

This is of relevance in relation to the amendment of the EPA 1990 Part III (Section 7.2.1 above), and available at: http://www.hmso.gov.uk/acts/acts1995/Ukpga_19950025_en_1.htm .

7.2.2 Antisocial Behaviour etc (Scotland) Act 2004

This act is of relevance in relation to the amendment of the EPA 1990 Part IV (Section 7.2.1 above), and available at: http://www.opsi.gov.uk/legislation/scotland/acts2004/20040008.htm . The definition of 'antisocial behaviour' is given as "acting in a manner or pursuing a course of conduct that causes or is likely to cause alarm or distress". Antisocial Behaviour Orders ( ASBOs) may be sought from the Courts by Local Authorities. The largest use of ASBOs has been in relation to disorder on housing estates: for example, in 2003/04, 94% of applications for ASBOs were in respect of offences committed 'in residential areas near perpetrators homes' (Scottish Executive, pers. comm.). To date, we are aware of one Local Authority only (Fife) that has applied for an ASBO to prevent a member of the public from feeding gulls (C. Morrison, pers. comm.). It is hoped that in the future, however, such use of legislation is not necessary and that education and persuasion can be used to prevent excessive feeding of gulls (C. Morrison, pers. comm.).

7.2.4 The Street Litter Control Notices Order 1991

This is of relevance in relation to the amendment of the EPA 1990 Part IV (Section 7.2.1 above), and available at: http://www.opsi.gov.uk/si/si1991/Uksi_19911324_en_1.htm .

7.2.5 Town and Country Planning (Scotland) Act 1997

If it appears to a planning authority that the amenity of any part of their area, or an adjoining one, is adversely affected by the condition of land in their area they may serve a Notice on the owner or occupier requiring them to remedy its condition within a certain time (under Section 179). The owner or occupier must be given 28 days notice by the planning authority and has the right to appeal to the Scottish Ministers. This document is available at: http://www.opsi.gov.uk/acts/acts1997/1997008.htm .

7.2.6 The Landfill Directive 1999/31/EC

Under this EC Directive, Member States must reduce the amount of waste going to landfill sites. The National Waste Plan drawn up by the Scottish Executive in the wake of this Directive will reduce land-filling of municipal waste from around 90% (2001/2 figures) to 30% by 2018 (see http://www.sepa.org.uk/pdf/nws/guidance/national_plan_2003.pdf ). This has implications for the number of landfill sites that may be in operation in the future and the local gulls that feed around these sites. The full text of the Directive was published in the Official Journal of the European Communities L182/1 on 16 July 1999 and is available on the Europa Website at: http://europa.eu.int/eur-lex/pri/en/oj/dat/1999/l_182/l_18219990716en00010019.pdf .

7.3 Legislation surrounding planning and building

Some Local Authorities include gull-proof design in their planning guidance for new buildings but current thinking suggests that this can be challenged by developers (D. Grant, pers. comm.). For example, Gloucester City Council is developing design guidance for their Planning Department/developers in relation to urban gulls and this should be available later in 2005 (M. Brentnall, pers. comm.). For some developments, Aberdeenshire Council Planning and Environmental Services Department make it a condition of planning approval that some level of mitigation is provided to prevent gulls from using the building(s), and this is assessed on a case by case basis (it may include, for example, building design conditions, the use of netting or the use of sound deterrents; D. Russell, pers. comm.).

7.4 Public health legislation issues

Derogations under the wildlife conservation legislation covering Scotland are permitted if gulls can be shown to cause a risk to public health or safety (section 7.1 above). Thus, in certain situations, for example where gulls exhibit aggressive behaviour towards vulnerable community groups (e.g. the elderly, children), there may be a case for mitigation of some form.

There are two further areas relating to public health that are often queried in relation to perceived problems associated with urban gulls: (i) risks of disease transmission (from the birds themselves or from droppings) and (ii) sleep deprivation due to noise. There are published papers relating to the carriage of Salmonella by gulls in the UK (Coulson et al. 1983a & b) and unpublished data from north-east Emgland show that 50% of Herring Gull cloacal samples examined carried Campylobacter and around 10% carrier Salmonella of many serotypes (J. Coulson, pers. comm.). In 2002, North Lanarkshire Council drew on advice from the Scottish Centre for Infection and Environmental Health (formerly SCIEH, now Health Protection Scotland - HPS) regarding the potential health risks posed by urban gulls. The key findings of the advice are presented on the Council's website (see:

http://www.northlan.gov.uk//living+here/public+health/pest+control/roosting+pigeons+and+seagulls+effects+on+human+health.html). This advice notes that whilst there is a theoretical risk of infection passing from urban gulls to the human population (because of the feeding sites used by gulls and their scavenging habits), in practice any risk is likely to be very low because in general there is limited opportunity for humans to ingest an infective dose of any pathogen carried by a gull. SCIEH advised the Council that Salmonella spp, Campylobacter spp and E coli 0157 have all been isolated from gulls feeding on landfill sites and that concerns have also been raised periodically about gulls roosting on school roofs or playing fields and potentially infecting these. There has been no evidence to date of any disease produced under these circumstances however, although the Council's website notes that in such situations a specific risk assessment might be appropriate and might result in local measures to mitigate against the gulls involved. Similarly with regard to fouling with gull droppings, infectious hazards due to these are thought to be minimal: previous links with Salmonella and disease in livestock were associated with gulls feeding at refuse tips and at sewage outfalls and then transferring infection but standards at both tips and outfalls are believed to have improved considerably such that it would be hard to show that this risk still continues (W. Reilly, pers. comm.). There might still be some very localised instances where exceptionally high build-ups of droppings could constitute some health risk, however, and in such situations legal advice should be taken based on the specific circumstances involved.

It has not been possible for us to obtain any concensus on whether sleep deprivation due to constant noise from gulls could constitute a risk to public health. This is because there is no written definition of 'public health and safety' within the wildlife conservation legislation from which there may be a need to derogate (section 7.1). The World Health Organization (1948) has adopted within its constitution a broad definition of health as "a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity" [ a definition that has not been amended since accepted in 1946; WHO 1948] but, once again, there is no concensus as to whether such a broad definition could be used to encompass sleep deprivation due to the noise caused by urban gulls.

As part of this project, we attempted to arrange a discussion meeting between ourselves and Professor George Morris (Scottish Executive) and Rod House ( HPS) to further discuss any public health issues relating to urban gulls but unfortunately, this could not be scheduled before the report was required. Further discussion on the issues raised above would be of value, however.

7.5 Gulls, Management Rules and Bye Laws

Section 112 of the Civil Government (Scotland) Act 1982 gives Local Authorities the power to make Management Rules to regulate (a) the use of; and (b) the conduct of persons while on or in, and land or premises that is owned, occupied or managed by the Local Authority or is otherwise under its control and to which the public have access, whether on payment or not. This it may be possible for a Local Authority to create Management Rules to prevent the feeding of gulls that are perceived as a nuisance on land that is owned or controlled in some way by that Local Authority. Of course, there may be practical difficulties associated with this kind of approach, as the bird feeding might, for example, be targeted at other species such as ducks on a pond, where the taking of the food by gulls might be purely incidental.

If Management Rules have been tried but have failed, or have proved inadequate in scope, a Local Authority can consider the making of Bye Laws. Bye Laws are usually subject to confirmation by Scottish Ministers and it is Scottish Executive policy not to confirm Bye Laws unless Management Rules have been tried and failed.

When pigeons were perceived as a problem in London, there was some discussion about the use of legislation to deter people from feeding them. In 2003, the Mayor of London introduced a new Bye Law that prohibited the feeding of pigeons in Trafalgar Square unless authorised by himself. A breach of this byelaw is a criminal offence punishable by a maximum fine of £50 (for further information on this specific case, see: http://www.london.gov.uk/view_press_release.jsp?releaseid=2032).