Bird Control and the Law

The law relating to the control of feral birds in the UK is produced and administered by the UK Government body, Natural England (www.naturalengland.org.uk) courtesy of the Wildlife and Countryside Act 1981 (Chapter 69). The Wildlife and Countryside Act 1981 is a long, outdated and poorly written document that is so complex that it is almost impossible for the layman to understand. The purpose of this page is to highlight and translate those parts of the Wildlife and Countryside Act 1981 that are pertinent to anybody experiencing a bird-related problem and confirm what action can be legally taken to resolve that problem.

Most property owners that experience a bird-related problem look to their pest control contractor to advise them in respect of the law and assume that the contractor concerned will be aware of the legal implications of any control option that is recommended and provided; this is rarely the case. Most pest control contractors know little or nothing about the law relating to the control of feral birds and indeed the General Licencing system to which all pest control contractors must adhere. It is also the case that most property owners are unaware that the legal liability for any bird control service provided on or in their property lies with them, not the pest control contractor concerned. Should any service provided by a pest control contractor fall outside the law it is the property owner that will be prosecuted, not the pest control contractor. It is therefore extremely important to be fully conversant with the Wildlife and Countryside Act 1981 and the terms and conditions of the General Licences prior to instructing, or taking advice from, a pest control contractor.

For the purposes of this page, and in order to provide a simplified view of a highly complex issue, we will concentrate on the control of feral pigeons. There are more problems associated with feral pigeons, and the control of feral pigeon populations, than any other so-called pest species of bird in the UK. It is also the case that a vast majority of the lethal pest control services (culling) commonly provided by the pest control industry for the control of feral pigeons fall outside the law. The Wildlife and Countryside Act 1981 offers little specific advice in respect of the feral pigeon other than where the use of lethal controls and the destruction of nests and chicks are concerned.

The Animal Welfare Act 2006 is considered to be more relevant legislation in respect of the use, or misuse of deterrents, anti-roosting products and bird exclusion products. This is because the Animal Welfare Act 2006 deals with all issues relating to cruelty and unnecessary suffering, both of which are commonly associated with the installation of bird control products, in particular bird exclusion products such as nylon bird netting. For example, if feral pigeons were excluded from a building or the underside of a railway bridge by the use nylon bird netting, and if any of the birds or their young had died of starvation as a result of becoming trapped behind or in the netting, the property owner would be prosecuted for cruelty under the Animal Welfare Act 2006 and not the Wildlife and Countryside Act 1981.

It is Part 1 of the Wildlife and Countryside Act 1981 that deals specifically with the killing of feral birds and the removal of their nests. This part of the Wildlife and Countryside Act 1981 confirms that it is illegal to kill any wild bird, or to interfere with a nesting bird or its eggs or destroy its nest. The only circumstance where a bird can be legally taken (killed) and its nest removed and destroyed is where the species concerned is listed under the relevant General Licence. However, in order to kill a bird or destroy the nest of a breeding bird listed on the General Licences - the guidelines laid down by the General Licences must be strictly adhered to. All the General Licences are available on the Natural England website: http://www.naturalengland.org.uk/ourwork/regulation/wildlife/licences/
generallicences.aspx. The Licences considered to be most relevant in respect of the control of feral pigeons are as follows: WML-GL04 and WML-GL05: http://www.naturalengland.org.uk/ourwork/regulation/wildlife/licences/
generallicences.aspx.

In order to undertake a pigeon control operation, particularly where the use of lethal control is considered, the property owner or pest control contractor must adhere to the criteria laid down by the relevant General Licences. A specific licence is not applied for or provided by Natural England for the purpose of undertaking each individual pigeon control operation, the licencing system is self-regulatory. If birds are to be killed as part of a pigeon control operation, or if nests are to be removed, the person undertaking these works must be an authorised person and must be fully conversant with the terms and conditions of the relevant General Licences. Part 1, subsection 27 of the Wildlife and Countryside Act 1981 defines an authorised person as:

• 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
   in which the action authorised is taken

• As respects anything done in relation to wild birds, any person authorised
   in writing by any of the following bodies, that is to say, any of
   the GB conservation bodies [this includes Natural England], a
   district board for a fishery district within the meaning of the
   Salmon Fisheries (Scotland) Act 1862 or a local fisheries
   committee constituted under the Sea Fisheries Regulation Act 1966;

• Any person authorised in writing by the [Environment Agency], a water
   undertaker or a sewerage undertaker, so, however, that the authorisation of any
   person for the purposes of this definition shall not confer any right of entry
   upon any land.

In addition to this the General Licence clearly stipulates:

• No person convicted on or after 1 January 2010 of an offence to which this
   paragraph applies may use this licence unless, in respect of that offence they are
   either (1) a rehabilitated person for the purposes of the Rehabilitation of
   Offenders Act 1974 and their conviction is treated as spent; or (2) in
   respect of such an offence, a court has made an order discharging them
   absolutely. This paragraph applies to offences under the Wildlife and
   Countryside Act 1981, the Conservation (Natural Habitats &c.) Regulations
   1994, the Conservation of Habitats and Species Regulations 2010, the
   Protection of Badgers Act 1992, the Deer Act 1991, the Hunting Act 2004,
   the Wild Mammals (Protection) Act 1996, the Animal Welfare Act 2006 and the
   Protection of Animals Act 1911 (all as amended).

• The licence permits action only for the purposes specified in paragraph 1.
   You may not use it to prevent nuisance (such as excessive noise).

• Under the Animal Welfare Act 2006 it is an offence to cause any
   unnecessary suffering to an animal (including birds) under the control of man
   (section 4 of the 2006 Act). This applies to the humane despatch of captured
   animals and to the treatment of animals held in traps or nets.

If any action taken to control pigeons lethally (whether taken by the property owner or by a pest control contractor acting as an authorised person) falls outside the guidelines laid down by the General Licences the action will be considered to be illegal and the property owner will face prosecution (Level 5 fine of £5,000 and/or a six month custodial sentence). Broadly speaking this means that any property owner can legitimately kill pigeons as a method of control but only once all the terms of conditions of the General Licences have been met. These terms and conditions are strict and lethal controls can only be used as a last resort.

The criteria for using lethal methods of control are as follows:

Lethal control can only be used where a demonstrable health and safety risk exists

Lethal control can only be used if the target species presents a demonstrable risk to public health and safety. The property owner will have to be able to present evidence in a court of law which confirms, beyond any reasonable doubt, that a real and severe risk to public health existed prior to using lethal controls. This is rarely if ever the case where feral pigeons are concerned. Compiling sufficient evidence to justify a serious risk to public health and safety, together with evidence confirming that bird control products have failed due to bird pressure alone will be virtually impossible.

Lethal control cannot be used to resolve a soiling problem or to protect a building

Birds cannot be killed, or their nests destroyed, in order to protect the fabric of a building. It is illegal to kill birds because they are soiling a building or causing damage to a building. The property owner must be able to demonstrate, in a court of law, that lethal control was used because bird control products had failed (due to bird pressure alone) and/or because a serious threat to public health and safety existed. If the property owner is found to have used lethal controls simply to resolve an unsightly soling problem on a building, prosecution will follow.

Anybody that acts outside the terms and conditions of the General Licences and commits an offence as a result can be arrested by the Police and publicly prosecuted - a prosecution can also be brought by Natural England's own teams of special investigators. A prosecution can be brought by any member of the public courtesy of a private prosecution. The Wildlife and Countryside Act 1981 is known as a Common Enforcers' Act which allows anybody to bring a prosecution against any individual or company that has compromised the terms and conditions of the Act by illegally killing a wild bird or by destroying its nest. Although there is no one specific body that is identified as being the legislator, this actually affords more protection to wild birds based on the fact that any agency or individual can bring a prosecution. The two organisations most commonly associated with wildlife crime are the Police and the RSPCA. The Police should be contacted in the first instance if a wildlife crime is suspected or if a property owner or pest control contractor has clearly breached the terms and conditions of the General Licence. Most Police stations have a Wildlife Crime Liaison Officer on hand who will be well-versed all in matters relating to wildlife crime. The Metropolitan Police have a Wildlife Crime Unit which, although over-worked and under-resourced, can be relied upon to provide advice and act where necessary. Contact details for the Wildlife Crime Unit are as follows:

Wildlife Crime Unit Ground Floor
Cyan Block
Cobalt Square
1 South Lambeth Road
London
SW8 1SU

Tel: 0207 230 8898
Email: wildlife@met.police.uk
Website: http://content.met.police.uk/Site/wildlifecrime

Although the guidelines laid down by the General Licences make it quite clear that before resorting to lethal methods of control strict criteria have to be met, most pest control contractors flout the law and recommend lethal control as a first line of defence rather than as a last resort. This is because culling pigeons and other birds is a highly profitable service. Incredibly, many pest control contractors will recommend lethal controls such as shooting and cage-trapping to a prospective client over the phone, before they have even visited the building or site in question. Culling in these circumstances would be illegal due to the fact that criteria and guidelines laid down by the General Licences could not have been met by the pest control contractor concerned. If a culling service was provided under these circumstances it would be the property owner that would be liable for prosecution, not the pest control contractor. It is therefore vital that the client is fully conversant with all aspects of the General Licencing system before instructing a contractor to act on his or her behalf.

Any building or site can be protected in order to resolve a bird-related problem and therefore there should never be a situation where lethal controls are even considered yet alone provided. The property owner has a staggering number of deterrents, bird exclusion devices and anti-roosting products to choose from, most of which are humane, non-lethal and 100% effective if installed and provided as per manufacturer's recommendations. The reason many bird control products fail is due to poor installation by the contractor rather than any inherent problem with the product itself. Pest control contractors are not regulated nor are they required to undergo any formal training in order to offer the services that they do. Most contractors are ignorant of the law where it relates to bird control and few if any pest control contractors can be described as bird control experts. Most pest control contractors are simply installers and cannot be relied upon to guide the client through the complex process of choosing the right service or bird control product to suit their needs. Nor can they be relied upon to recommend a service that will not fall outside the law.

As previously mentioned, pest control contractors will commonly recommend lethal controls prior to any bird control products being tried and found to fail. Lethal services are also commonly offered in circumstances where the problem cannot, under any circumstances, be described as being a threat to public health. In a vast majority of cases bird-related problems are minor, can be easily and cheaply resolved by installing bird control products and cause few if any problems other than soiling problems to the fascia of a building. In these circumstances lethal controls of any description would be illegal. Independent advice should always be sought when experiencing a bird-related problem, if for no other reason than to ensure that the controls recommended fall within the scope of the law. Any company that sells products and services cannot be relied upon to offer advice that is in the best interest of the client. In virtually every case pigeons and other birds can be controlled within the terms and conditions of the General Licence and without resorting to lethal (and potentially illegal) methods of control, but this may not always be in the best interest of the pest control contractor.

Bird exclusion devices such as nylon bird netting can have potentially lethal consequences if the product has been installed inexpertly, in the wrong area, or without regard to the manufacturer's guidelines. Entrapment is an extremely common consequence of poorly or inappropriately installed bird netting and can result in prosecution for the property owner concerned. Nylon bird netting is one of the most expensive and one of the most commonly used bird exclusion products and yet it is not uncommon to see dead and dying pigeons hanging in degraded or poorly installed bird netting. Vast numbers of pigeons die every year having become trapped behind bird netting installations on buildings; not only is this an illegal act (to entrap a wild bird) but it is completely avoidable.

It is not only nylon bird netting installations where birds (normally pigeons) become trapped and die of starvation, or die of their injuries where entanglement is concerned. Huge numbers of pigeons die every year having been wired in behind steel mesh installations under railway bridges and road bridges, both commonly used roosting and breeding sites by the feral pigeon. In some circumstances a heavy gauge of nylon bird netting is sometimes used but with the same end result. These problems are completely avoidable and are due, almost exclusively, to poor standards of workmanship and a lack of understanding of the species concerned on the part of the pest control contractor. Pest control companies that carry out these works are product installers, not bird control experts, and know little or nothing about birds, bird management or the law. The client, however, is liable to prosecution for causing unnecessary suffering should birds become trapped and suffer or die as a result.

Due to the fact that the Wildlife and Countryside Act 1981 is a Common Enforcer's Act, any member of the public can bring a private prosecution against a property owner if they see dead or dying birds trapped within or behind nylon bird netting installations. Similarly, any agency can bring a prosecution against any individual or company where birds have suffered or died having become trapped behind or within bird netting installations. The Animal Welfare Act 2006 would be used for the purpose of the prosecution based on the fact that unnecessary suffering had resulted.

In section 4, paragraph 18 of the Animal Welfare Act 2006 the term unnecessary suffering is defined as follows
(http://www.opsi.gov.uk/acts/acts2006/pdf/ukpga_20060045_en.pdf): "The 1911 Act makes it an offence to cause unnecessary suffering to any domestic or captive animal, with limited exceptions including suffering caused under the Animals (Scientific Procedures) Act 1986. The 1911 Act has formed the basis for most prosecutions concerning animal cruelty and has been amended by several subsequent Acts. The provisions of the 1911 Act no longer reflect modern practice. Excepting the restriction to vertebrates, this section is intended to replicate the protection provided by the 1911 Act, but to simplify and update the legislation."

The only anti-roosting products that are illegal to use in the UK are those powered by electricity. There are a growing number of products manufactured in the USA that are powered by electricity and operate on the basis of inflicting an electric shock to the target species, normally to the feet. These products are powered either by solar energy, DC or AC power sources, or a combination of these. The most commonly used products are known as 'shock track systems' or 'electric shock systems'. In each case, irrespective of how the device is powered, it would be illegal for use in the UK. However, one product 'Avishock' has been authorised for use in the UK although it is currently not understood why an exception has been made in this case. In this case it would appear that DEFRA/Natural England has bowed to commercial pressure.

Under Part 5, subsection 1, paragraph a of the Wildlife and Countryside Act 1981, entitled 'Prohibition of certain methods of taking or killing wild birds', it confirms that any "..electrical device.." used for the purpose of " ..stunning or frightening.." would be illegal for use in the UK. This is defined as follows:

"Subject to the provisions of this Part, if any person sets in position any of the following articles, being an article which is of such a nature and is so placed as to be calculated to cause bodily injury to any wild bird coming into contact therewith, that is to say, any spring, trap, gin, snare, hook and line, any electrical device for killing, stunning or frightening or any poisonous, poisoned or stupefying substance."

Another bird control product that is not licenced for use in the UK, but which has been passed for use by the Environmental Protection Agency (EPA) in the USA and is currently being trialled in the USA, is the pigeon-specific contraceptive OvoControl P. The use of this contraceptive in the UK would be illegal.

Another bird control service that is now more commonly offered in the UK, but which is not perceived as being a method of lethal control, is using a hawk or falcon to control or deter problem birds. Any property owner considering this service should be aware that those offering the service are normally falconers and know nothing about bird control or the law. It should also be understood that this service commonly makes the headlines when so-called trained hawks 'go feral' and attack and rip to pieces both target species and non-target species. If a domesticated hawk has been deliberately flown as a commercial service and kills a protected species of bird or even a pest species of bird without first complying with the terms and conditions of the General Licences, as discussed above, the client is liable to prosecution. A hawk cannot be trained not to kill, it is the bird's natural instinct to do so, and if a protected species is brought down and killed by a hawk in a commercial operation the consequences can be very serious indeed. Not only resulting in prosecution for the client but also extremely negative publicity should the kill be witnessed.

In summary, the law is clear where the use of lethal control is concerned - if pigeons or any other so-called pest species of bird is killed during a pest control operation without meeting the strict terms and conditions laid down in the Wildlife and Countryside Act 1981 and the Animal Welfare Act 2006 the act would be illegal and a prosecution would be brought.

In virtually every case there is an effective and cost-effective method of deterring or physically excluding feral birds from a building or site. Many property owners will choose a lethal control option when faced with a large quote for protecting a building with deterrents or anti-roosting products but the law is clear. If bird control products have been tried and found to fail this failure must be as a result of bird pressure alone and not because the product chosen is inappropriate or because it has been installed poorly and without following manufacturer's guidelines.

Pest control contractors will always try to sell the client as many products and services as possible, irrespective of whether those products or services are legitimate or legal for use in the UK. This is done safe in the knowledge that it will be the property owner that faces prosecution should the product or service offered fall outside the terms and conditions of the General Licence and/or the Animal Welfare Act 2006. It is the responsibility of the property owner to satisfy him or herself that the controls recommended by a pest control contractor are not only appropriate and will resolve the problem, but are legal. Failure to do so may result in prosecution. Thousands of pigeon culls are carried out every day of the week across the UK and a vast majority of those culls are illegal, but the client is rarely aware of this fact or that it is them that are legally responsible.

The pest control industry is an unregulated industry and property owners have no recourse if they are provided with bad advice, poorly installed and inappropriate products or an illegal service that results in prosecution. Many pest control contractors know nothing about bird control or the law and yet they sell their services with impunity.

When faced with a bird-related problem independent and non-commercially biased advice should always be sought from a professional and expert body such as PiCAS UK that is conversant with all aspects of the pest control marketplace and, more importantly, the law. Few people would buy a house without having a professional surveyor carry out a detailed survey and provide a report, yet property owners spend tens of millions of pounds every year in the UK acting solely on the advice of their pest control contractor without ever seeking independent advice.

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