SIMON
FACT SHEET NUMBER 4
STOCKING CONSENTS
1. INTRODUCTION
Fishery owners
should be aware of the restrictions on introducing fish into waters, and of
removing them other than by rod and line.
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 1975. 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 see the power as a way of regulating
the stocking of waters generally in accordance with their ideas of how waters
should be stocked.
These provisions
interrelate with section 14 of the Wildlife and Countryside Act 1981. This section makes it an offence to
introduce a new species of fish or shellfish into
The requirement to
obtain a consent to net fish for the purpose of making
a transfer between discreet fisheries is found in byelaws made by the relevant
region of the Agency. Section 3 of
the Act regulates the manner in which fish can be taken, and in particular the
use of nets. Byelaws made pursuant
to section 28 of the Act will provide for the manner in which fish can be
caught, and also provide that fish may not be removed by the use of nets without
the prior consent of the Agency.
The Environment
Agency has an “e fish” section on its web site which has
information on stocking fisheries, and also general advice leaflets on running
fisheries. When making applications
it is necessary to contact the local office. The Agency have now produced an “e” consenting
system allowing users to register and lodge applications and track progress
electronically.
2. PROCEDURE
FOR OBTAINING SECTION 30 CONSENTS
The fisheries
section of each Agency region operates a system to implement the obligation to
obtain a consent before stocking takes place. A standard form for the region has to be
completed and returned to the Agency.
The application will then be processed and an official consent
issued. The Agency recommends that
the application is lodged at least ten days before the stocking is to take
place. In practice this is a
counsel of perfection since often fish become available at short notice.
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
does not require a health check.
The health check has to be carried out by an independent fish health
consultant. The Agency website has
details of approved consultants and gives details of how checks should be
carried out.
The Agency now has
a National S.30 policy that is intended to ensure that applications are treated
consistently between different regions.
The consent should
be applied for from the Agency region in which the stocking is to take
place. It is also important to note
that if fish are to be transferred into a different Agency region then the
consent for the netting will be made to one region and the consent for the
stocking to another.
From the
Agency’s point of view the application for the stocking can be made by
the person who is supplying the fish or by the owner of the fishery. What is plainly important is to ensure
that someone does make the application.
As a general rule the supplier is the more logical person to make the
application. He will know the exact
numbers of fish that are available to stock, and the time when the delivery
will be made.
3. CONSEQUENCES
OF FAILURE TO OBTAIN A CONSENT
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.
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. Also 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. Also, 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 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 for 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.
At present the
Marine and Coastal Access Bill is before Parliament. This looks to update freshwater
fisheries legislation in line with recommendations made by the Freshwater
Fisheries Review in 2000. This will
include a radical overhaul of the consent system.
4. STOCKING
IN SITES OF SPECIAL SCIENTIFIC INTEREST
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 will 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 the 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.
These management
agreements 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 fishing 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 try 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.
5. NETTING
CONSENTS
If a fishery owner
wishes to transfer fish or, for example, to remove excessive numbers of prey
fish, then permission from the Agency will be required if this is to be
achieved using nets, and may be required in certain cases even if fish are to
be removed by rod and line.
As explained
above, each region of the Agency has different byelaws in place regulating
these matters. It is essential
therefore that contact is made with the local fisheries officer to find out if
prior consent is needed.
As with stocking
consents it will be necessary to make a written application and receive consent
in advance of the netting taking place.
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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.
Simon Jackson
Solicitors
The Office
Tyn Celyn
Llansilin
Oswestry
SY10 7JW
Tel: 01691 791439
Fax: 01691 791583
e-mail. srbj@btconnect.com