Fly control is critical
The fly season is rapidly approaching and free range poultry farmers need to ready themselves.
Problems caused by flies ’ or more accurately by people complaining about flies - from free range poultry farms have greatly increased in the last few years. The cost in terms of time, money and reputation in dealing with these complaints is very considerable, but can be much reduced by good forward planning.
Deborah Sharples from Hewitsons solicitors has successfully defended a number of farmers against accusations of fly nuisance and has successfully obtained planning permission for farmers where potential fly nuisance has been a reason for refusal. In this article she offers advice based on her experience.
’For those without an environmental permit, fly complaints are likely to be dealt with by the local Council under its powers to deal with statutory nuisance. The procedure is that the Council will serve an abatement notice if it thinks that there is a nuisance coming from the farm. There is a right of appeal against an abatement notice, but it is far better to avoid one being served in the first place.
For those with a permit, it is likely that the issue will be addressed by the Environment Agency as a potential breach of the permit. Here there is no abatement notice and no right of appeal and matters can move directly to a prosecution.
It is rare that either the abatement notice or summons comes out of the blue and there will usually be contact from and often a visit from the Council or the Agency (and sometimes both) before a notice is served. Where the EA is investigating, the farmer may be interviewed under PACE as a preliminary step, but not necessarily.
The investigation stage is your opportunity to demonstrate that all the right procedures are in place. If you can do this, further action may be avoided.
A professional approach to the situation is very important. You should keep notes of conversations and site visits and confirm conversations in writing soon after they take place. However relaxed and friendly the investigator is you should assume the worst and collect together the evidence that you will need to defend yourself. If the investigator is aggressive or irritating you must remain professional and courteous. Situations can soon escalate where there is personal animosity.
If you get a visit from the authorities, it is a good idea to have a witness present, even if it is only a member of your own staff. Ideally, it should be an expert in the field, but you will not always get enough notice for that. The visit may take place many months before any court hearing and recollections do vary widely as to what was seen and said. An inexperienced officer will often describe a modest and normal number of flies as an appalling infestation. It is an extremely helpful to make an empirical, or at least contemporaneous, record of what was actually there at the time of the visit. Photographs taken immediately before or after the visit can be of tremendous value, but notes and sketches would also be useful.
To avoid fly problems and to minimise the risk of being served with a notice or summons, a system of integrated fly control should be in place and must be documented. The system should comply with the latest advice for the type of unit being operated. The manufacturers of larvaecides and insecticides can offer good advice, but it is viewed with suspicion by the enforcement authorities and it is better to be able to demonstrate that you are up to date with the latest system that is recommended by those who do not have such a vested interest. The best position is to have taken advice on your own situation from an independent expert who is experienced in fly control in poultry units. If that is not viable or justifiable on cost grounds, then make sure that you keep up to date with the latest advice from trade journals and other sources such as Defra.
It is extremely useful to have a record of the level of flies in the houses from time to time. This can be done by using sticky papers of a standard size and leaving them up for a standard length of time before taking them down and recording either the number of flies or the density of cover. The papers themselves can be kept as a graphic representation of fluctuating numbers. I have acted in cases where this type of evidence has been used to show that fly numbers within the houses were low at a time when complaints from the surrounding area were increasing. This was clear evidence that the farm was not the source of the flies.
It is by no means uncommon for flies to be blamed on the poultry farm when the actual source is somewhere else or they are simply a natural occurrence because of the topography. The Council or the EA should investigate that possibility, but the harsh reality is that you cannot depend on them to do it or to do it properly and you are likely to have to produce your own evidence. Magistrates are as likely as anyone else to make the assumption at the outset that a large poultry farm is the source, where there is a serious fly infestation in an area, but in my experience they are willing and able to accept that that is not the case where the evidence is presented to them properly.
It is a defence to an abatement notice that, at the time of its service, best practicable means were being used to minimise the nuisance. This will be your integrated fly control system, so it is vital that you document the method that you use to assess the fly or larval numbers and when and how you applied the controls. You will need to demonstrate that you have operated in a way that will keep the litter and manure dry, so your ventilation and food and water regimes will come under close scrutiny. Because the moment that counts is the moment that the notice is served, it is very valuable to get an independent expert to visit at the same time as the Council or very soon afterwards. Your expert should be a real expert on pests in livestock. The Council officers will not be specifically expert and not all independent entomologists really understand the practicalities of poultry management.
If an abatement notice is served, there is a limited window of 21 days to appeal and it is vital that you do not let this pass without, at the very least, seriously considering the option. Many abatement notices are flawed or unjustified and many can be negotiated away, but you will have no negotiating position once the time for appeal has passed. Once the time for appeal has passed and no appeal has been lodged, the notice will stay in force forever and further complaints will lead to the risk of prosecution and large fines. It is by no means unknown for the Council to then suggest that a farmer’s failure to appeal was an indication that he accepted responsibility.
If the farm has a permit there is no defence of best practicable means, but all the steps that I have described are still valuable to avoid a fly problem, discourage or defend a prosecution or, in the worst case, to provide good mitigation. The Environment Agency often faces very real difficulties bringing a prosecution where it thinks there is a fly problem, because many permits contain no condition which clearly deals with flies. It is difficult to bring flies clearly within any of the usual conditions. They are sometimes treated as ’fugitive emissions’ and are referred to under this heading in the latest version of ’How to Comply’. It is, to say the least, questionable whether they can really be called an emission, but in any event, the condition against fugitive emissions will not normally have been breached if the operator has taken appropriate measures to prevent or minimise the emission ’ the integrated fly control programme that I have already referred to.
It is important, where a notice is served or a prosecution is brought, under whatever legislation, to consider the evidence very carefully indeed. These are not easy cases to prove and it is often the case that evidence that seems compelling on its face can be dismantled under close and expert scrutiny. Farmers need to be vigilant not only against the flies but also against false and ill founded accusations.’
