STOCKING AND MANAGING FISHERIES

Transcription

1 STOCKING AND MANAGING FISHERIES FACT SHEET NUMBER 4

2 STOCKING AND MANAGING FISHERIES INTRODUCTION There are many legal issues related to the stocking and management of fisheries and this fact sheet will consider the following:- 1. Registering a fishery 2. Stocking Fish 3. Netting and removing fish 4. Stocking non-native species 5. Protected habitats 6. Buying fish - the risks. 1. REGISTERING A FISHERY Since August 2009 it has been a legal requirement to register still water fisheries with the Fish Health Inspectorate. This obligation was introduced by the Aquatic Animal Health (England and Wales) Regulations 2009 that were passed to implement European Directives aimed at preventing the spread of fish disease. Importantly the Environment Agency will not issue a stocking consent unless the fishery is registered. Registration is dealt with by completing a form RW1 and submitting it to the Fish Health Inspectorate in Weymouth. Under the same regulations there is an obligation to inform the Fish Health Inspectorate if you suspect a notifiable disease to have occurred in your fishery. 2. STOCKING FISH The Environment Agency has published a helpful general information booklet Stocking Fish, A Guide for Fishery Owners. This is available online. It deals with the broader issues as to the benefits and risks of stocking fisheries. Section 232 of the Marine and Coastal Access Act 2009 provides a statutory framework for the creation of regulations relating to the keeping, introduction and removing of fish in inland waters in England and Wales. Defra is currently consulting on implementation of this section but in the meanwhile the existing provisions of the Salmon and Freshwater Fisheries Act 1975 remain in force. Fact Sheet No.4 2

3 Before introducing stock to a fishery, the consent of the Environment Agency has to be obtained. Just as important, if fish are being moved from one water to another, a different consent is required to net the fish that are to be moved. The requirement to obtain consent for stocking is contained in section 30 of the Salmon and Freshwater Fisheries Act The section provides:- A person shall be guilty of an offence if he introduces any fish or spawn of fish into an inland water or has in his possession any fish or spawn of fish intending to introduce it into inland waters unless he first obtains the consent of the water authority [now the Environment Agency] The principal purpose of the section is to prevent the spread of disease by reason of infected fish being stocked with indigenous and stocked fish already in the receiving water. However, the Agency clearly sees the power as a way of regulating the stocking of waters generally in accordance with their ideas of how waters should be stocked. Applications for stocking consents should be made to the Environment Agency with application forms being available from local offices. There is also an online system, Live Fish Movements Online, which allows applications to be processed online after registration. The Environment Agency requires all applications to be submitted at least ten working days before the stocking is to take place (which can in practice be difficult to achieve). They will then consider the application and apply any policies they have in place relating to stocking. Thus for example stocking salmon fisheries with migratory species not native to the catchment is not likely to be approved. There is a requirement that brown trout stocked in rivers should be diploid or triploid fish to prevent interference with wild stock breeding. Where the fish are to be stocked into rivers, canals and other open waters or waters within a flood plain then the Agency will require a health check on the fish to ensure that they are not diseased before they will issue consent. Generally stocking in enclosed waters, ie, waters not connected to other waters, does not require a health check. The health check has to be carried out by an independent fish health consultant. The health check can also be carried out for free at the Agency s National Fisheries Laboratory. The Agency website has details of approved consultants and gives details of how checks should be carried out. Introducing fish to waters without a consent is an offence under section 30. The offences are the introduction of fish, or the possession of fish with intent to stock. Therefore the person who physically puts the fish in the water will be liable to prosecution. From a fishery owner s point of view, it is sensible to ensure that the person who delivers the fish also puts them into the receiving water, and does not, for example leave them in a holding tank for the owner to stock himself. This will help to ensure that if there is an issue of whether a consent has been granted the owner will not unwittingly pick up responsibility. Fact Sheet No.4 3

4 From a practical point of view a fishery owner should always speak with a supplier to make sure that the supplier is obtaining the necessary consent. Once the consignment of fish arrives, the owner should ask to see the consent before the stocking takes place. He should check that the stocking is being carried out on the date that has been authorised by the Agency. As far as possible, he should check that the fish in the consignment tallies with the number, size and species that are set out in the consent. If the owner is in any doubt then it may be best to reject the consignment unless it is possible to obtain verbal confirmation from the Agency that all is in order. As indicated above it is an offence to be in possession of fish with intent to stock them without having a valid consent. If for example a fishery owner is transporting fish from one water to another and does not have a consent for the intended introduction then he is liable to prosecution for the intent offence even though the fish have not been introduced. This issue could also arise if fish arrive at site for which a consent has not been issued. If Agency officers arrive in such a situation, it is possible that the fishery owner will be treated as in possession of those fish with intent to introduce them and potentially liable to prosecution. From the fish suppliers point of view conversely there is benefit in putting the onus on the customer to obtain the consent, although practically it may be difficult to do this. In any event it is essential to ensure that someone is responsible. An offence under section 30 is punishable by a fine not exceeding 2,500. On a first offence it is unlikely that any fine would exceed 500. However there is often an award of costs in favour of the prosecution. On top of that is the time and trouble involved in the prosecution process and the publicity that a court hearing will attract. As the offence is what is known as a summary offence, the proceedings have to be commenced within six months of the date of the offence. 3. NETTING AND REMOVING FISH Section 27 of the Salmon and Freshwater Fisheries Act makes it an offence to fish for or to take fish other than with a licence issued under the Act. Fishing licences are issued for fishing with rod and line. It follows that taking fish with nets (other than ancillary use of landing nets) is unlawful. However the Environment Agency can issue individual consents permitting removal of fish with nets. This can be done by completing a form FR2 which, if approved, will allow a licence to be issued. Often of course this application will be made in conjunction with a stocking consent application where fish are being moved from one location to another. Fact Sheet No.4 4

5 4. STOCKING NON-NATIVE SPECIES Under section 14 of the Wildlife and Countryside Act 1981 it is an offence to introduce a new species of fish into England and Wales which is not ordinarily resident or to introduce species included at Schedule 9, Part 1 of the Act. This Schedule includes such species as Pumpkinseed and Wels Catfish. This legislation dovetails with the restrictions contained in the Import of Live Fish Act 1980 and the Prohibition of Keeping or Release of Live Fish (specified species) Order There is a procedure for the issue of licences under the Wild Life and Countryside Act where applications can be made for a licence to keep species that would otherwise be unlawful. Such licences have to be in place before the stocking takes place. In broad terms such licences will only be granted where the receiving water is not connected to any other waters. 5. PROTECTED HABITATS An increasing number of fisheries these days fall within Sites of Special Scientific Interest, or Special Areas of Conservation. SSSIs may be still water fisheries or river fisheries where whole river corridors have been designated. Some sites are also Special Areas of Conservation designated under the Habitats Directive. If fisheries fall within an SSSI or an SAC, then the fishery owner may, if they wish to carry out fish stocking, have to enter into a management agreement with Natural England, the organisation responsible for running such sites. One of the activities that are covered by such agreements is the stocking of waters. The Regulations provide that there should be an appropriate assessment to demonstrate that introduction of fish will not disrupt the integrity of the site However, not only can Natural England restrict new stocking, they will sometimes try and force a fishery owner to remove fish where it considers that the stock balance is contrary to what it believes to be the natural status of the waters. This is of particular concern in the case of commercial coarse fisheries where the presence of specimen size carp in good numbers is crucial to the success of the fishery. For example, Natural England argues that an excess of bottom feeding fish can be detrimental to plant and insect life in those waters. Management agreements, if entered into, will also regulate such matters as pest and weed control. In the case of a newly created SSSI, it is important to negotiate with Natural England to ensure that the agreement does not unreasonably restrict fishing and fishery management. If entering into a Management Agreement causes damage to a business then Natural England must compensate the owner for losses suffered. Obviously if a water is being acquired that is subject to an existing agreement, then it is important to consider its contents before committing to the water. Where Natural England tries to vary the terms of an existing agreement, there are arguments that can be put forward against a cull of specimen fish. This is more a matter for a fisheries consultant. Fact Sheet No.4 5

6 6. BUYING FISH - THE RISKS As well as considering the various permissions you may need to stock fish in your waters, you also need to consider the health of the fish you are purchasing. Fish purchases can involve many thousands of pounds, particularly in the case of larger coarse fish species. Whilst the health checks that will be carried out by the Environment Agency will in most cases provide some comfort there are unfortunate incidents where fish purchased die after stocking and, still worse, can infect healthy fish already present in the receiving waters. The general rule in common law is Buyer Beware meaning that what you buy is at your risk. There are some steps that can be taken to reduce risks before you commit to any purchase. First if you are stocking into waters that do not require a mandatory health check then arranging your own health check would be highly advisable. Also taking advice from an independent fish health expert would be sensible for any high value purchase. It may also be possible to negotiate written terms for the contract. All too often contracts of this sort are verbal. A written agreement does not have to be lengthy. The inclusion of a warranty by the seller that the fish are in good condition and that the seller is not aware of any health issues would be advisable. It may be that the seller will have standard terms and conditions which are printed on order forms. These should be read before any order is made. It is likely that these will include some form of exclusion clause stating that the fish are purchased at the buyer s risk and excluding liability for any loss or damage. Ideally these terms should be amended to remove these provisions. If these steps are not taken all is not necessarily lost. The Sale of Goods Act 1979 will imply certain terms into all contracts. These are that the goods must be as described. They must also be of satisfactory quality and fit for the purpose they were intended for. Clearly if fish purchased turn out to be diseased the sale is likely to be in breach of these implied terms. A further positive provision for purchasers is the Unfair Contract Terms Act This provides that where a person purchases good as a consumer, ie, not as a business, then it is not lawful to exclude the implied terms in the Sale of Goods Act in contractual terms. This is a very brief review of what is a fairly complex area of law but should give some pointers to the potential legal issues associated with buying fish stock. Fact Sheet No.4 6

7 Please note that this fact sheet is intended to give general guidance on the stated area of law We cannot accept any responsibility for the consequences of relying on this fact sheet in relation to particular circumstances of which we are not aware. Should you require more information on any issues raised in this fact sheet or require advice on a specific issue please contact Simon Jackson. Simon Jackson Solicitors Thorpe House, 29 Broad Street, Hereford HR4 9AR The Office, Tyn Celyn, Llansilin, Oswestry SY10 7JW srjackson@hcrlaw.com Simon Jackson Solicitors is a trading name of Harrison Clark Rickerbys Authorised and Regulated by the Solicitors Regulation Authority (SRA) Fact Sheet No.4 7