Thank you for your letter … enclosing a copy of one from Mr P E Holmes … about the problems he has experienced as a result of the use of audible bird scarers near his home.

Mr Holmes refers to the NFU Code of Practice for Bird Scarers. First published in 1994, this was subsequently revised in 1997, although neither version has been approved by DEFRA under section 71 of the Control of Pollution Act 1974. […]

On hours of use the full Code actually recommends that farmers: "Avoid using scarers within at least 200m (220 yards) of sensitive buildings before 7.00 am, or before 6.00 am elsewhere, when sunrise is earlier. Use another method in the early morning."

As regards the difficulty of locating the owner of a scarer the Code urges farmers: "Ensure that your neighbours have the name of a responsible person to contact if the control on a scarer fails, and that his/her name and telephone number are displayed at the nearest point of public access."

It is important however that an officer of the local authority should be involved to investigate and establish the facts in this matter. Moreover, under the terms of the Environmental Protection Act 1990 the local authority must take reasonable steps to investigate a complaint of noise nuisance, including that emitted from gas guns, made by a resident within its area.

Its powers in this regard extend to the investigation of possible nuisances that may arise from fields in the area of an adjoining local authority. If satisfied of the existence of a statutory nuisance then the local authority is obliged to serve an abatement notice on the person responsible. This notice may require that the noise-making activity ceases, or restrict it to certain hours, or require remedial actions are taken. Consequently I would recommend that Mr Holmes may benefit from contacting his local Environmental Health department again, to request further action from its officers.

However, being a business, farmers have a degree of protection afforded by the statutory defence that they have employed best practicable means (BPM) to prevent, or to counteract the effects of, the nuisance. Nevertheless they will have to be able to prove that this is the case, and even rigid adherence to the advice in the NFU code would not necessarily be viewed by a court as demonstrating BPM in all situations.

The NFU is one of a number of bodies that has previously sought approval for its code of practice for minimising the effects of a particular type of noise-emitting activity. In order to improve the effectiveness of future codes of practice created to control noise nuisance, the Department, in consultation with the National Society for Clean Air and Environmental Protection (NSCA), have prepared a draft guidance document to assist bodies or groups proposing a new code of practice. This document, "Guidance on drafting Codes of Practice for Minimising Noise in England", is in the final stages of consultation and will be available later this year. The NFU may then wish to seek approval for their Bird Scarer Code, although this is likely to require further work by them to satisfy the requirements specified within the guidance document produced by the Department, including the active involvement of other interested parties, should they decide to submit a revised Code to the Secretary of State for approval.

I am not aware of bird scarers representing a physical hazard to the public or animals although there is advice in the NFU code regarding the positioning of scarers where they might startle passers-by or horses, which I think is only sensible. Finally, whilst there are no plans to introduce legislation such as that suggested by your constituent, specifically to control the use of bird scaring devices, DEFRA are investigating what research into the effectiveness of alternatives to audible scarers might be appropriate in order to produce more detailed advice for both farmers and local authorities to help limit noise nuisance.