While the City of Melbourne has recently awarded a $28,000 grant to Roof Top Honey, another urban council is responding to beekeepers in a very different way.I am an urban beekeeper, having acquired my first hive about 5 years ago. My beekeeping is an enjoyable hobby that puts me in touch with the seasons, makes my yard productive, and provides a free community pollination services to fruit trees and vegetable gardens in my neighbourhood.In October 2011, I was contacted by an Environmental Health Officer from my local council. The officer explained that council had received a complaint, that my bees presented a threat to health to the neighbours and that I was to remove them immediately. I asked for details of the complaint and for an opportunity to address any issues or concerns. Council refused. I asked about the nature of the health threat and was told, ‘bees kill people’, when pushed the officer went on to say ‘some people are afraid of bees’. I asked that council arrange an inspection with an appropriately qualified apiary officer. I was refused. I asked for my beekeeping to be assessed against the Apiarists’ Code of Practice. I was refused. I explained that I was a registered bee keeper who kept my bees in accordance with all legal requirements. The officer replied: "the law doesn’t matter if there has been a complaint". I stated I would NOT get rid of my bees. The officer threatened court action and within days I had been issued a Prohibition Notice under the Public Health and Wellbeing Act 2008.Having my bees declared a health threat is one thing; but the possibility of a $14,656.80 fine is enough to make any backyard hobbyist re-think their interest. It is not surprising then that beekeepers have in the past folded under the pressure and removed the hives without challenge. The number of beekeepers issued with these notices remains anecdotal, with council refusing to confirm numbers. I have since been informed that the Prohibition notice is a standard form, with its contents prescribed under the Health and Wellbeing Act and that no fine can be imposed without the matter being heard and the fine imposed by a magistrate. The notice itself implies otherwise. By the time the issue is heard by a magistrate a beekeeper who fails to remove hives will already be in breach of the terms of the notice.
THIS IS A TYPED COPY OF THE NOTICE/NOT A SCANNED COPY.Prohibition NoticeSection 194 Public Health and Wellbeing Act 2008 (vic)Dear …,[You have] contravened Part 6, Section 61 of the Public Health and Wellbeing Act 2008 in circumstances that make it likely that the contravention is continuing.Grounds on which the issue of the prohibition notice is based:-It appears you are responsible for the property listed above within the municipal District of the City of Greater Dandenong and it would appear that the nuisance or other condition liable to be dangerous to health or offensive is caused by you, knowingly allowed to exist or suffered to exist, to wit:-A person must not –cause a nuisance; orknowingly allow or suffer a nuisance to exist on, or emanate from, any land owned or occupied by that person.You are prohibited from:Keeping bees on this property listed above.Period of prohibition: PermanentIf you do not take the actions specified, you will have contravened this prohibition Notice and such a contravention carries penalties (for the natural person or a corporation).Failing to comply with this notice carries a penalty of 120 units ($14,656.80) for a natural person or 600 penalty units ($73,284.00) for a corporation.IMPORTANT NOTESYou may appeal against the issue of this prohibition notice to the magistrates’ court. You must do so within 21 days after this notice is served on you. Section 208 of the Public Health and Wellbeing Act 2008 (Vic) applies.If you appeal against the issue of this Prohibition Notice you must still comply with this notice until the Magistrates’ Court makes a determination on the appeal. Section 208 of the Public Health and Wellbeing Act 2008 (Vic) applies.The Issue of this Prohibition Notice does not affect any proceeding for an offence against the Public Health and Wellbeing Act 2008 (Vic) in connection with any matter in respect of which this Prohibition Notice is issued. Section 195 of the Public Health and Wellbeing Act 2008 (Vic) applies.Signed at Dandenong on this 17 thday of October 2011.Terry MartinAuthorised Officer under the Health and Wellbeing Act 2008 (Vic)
As an Urban beekeeper, I have up-to-date DPI registration and have sent in my honey samples when requested (all clear!). I have a copy of the Apiary Code of Practice and abide by its requirements. I am a member of Southside Beekeeping Club and more recently, the Victorian Apiarists’ Association (Melbourne Branch). While all this proved a good start, I still found myself in the midst of a complicated legal issue.
I contacted my local councillors, a Department of Primary Industries Apiary Officer, my local bee club, and finally the Victorian Apiarists’ Association, before finding anyone willing to help. The Victorian Apiarists’ Association were both interested in the issue and willing to help where they could. I was taking a crash course in the legalities of beekeeping in Victoria. I read, I consulted, I read some more.
Apiary Specific Law in Victoria can be found in two places: The Department of Primary Industries (with its requirement to register) and the State Planning Scheme, under which falls the Apiarists Code of Practice (with requirements to do with management, hive numbers, property size and distance from fences etc). If you are not in Victoria, legislation may differ.
The use of the Public Health and Wellbeing Act 2008 (Victoria) , would seem to represent a shift in Council management of municipal hives. Mine was the first such notice bought to the attention of the Victorian Apiarists Association, (though we now know it was not the first). Mr Peter Shelton, of the City of Greater Dandenong, states that the council has been issuing Prohibition Notices on ‘case by case’ basis to beekeepers since at least 2004. This could mean that an unknown number of beekeepers have removed legally-owned hives through fear of fines or prosecution.
The Council Prohibition Notice refers to: Part 6 Division 1: Nuisances. The Act states: This division applies to nuisances which are, or are liable to be, dangerous to public health or offensive. In this case council deemed this to be the appropriate law with which to deal with a complaint from a neighbour who appears to have been concerned about bees in their backyard. Council officers refused to identify the precise nature of the complaint, but when questioned were prepared to acknowledge that no swarm was identified and the complainant had not been stung.
When asked, the Team Leader of the Environmental Health unit explained the health risks as existing on a ‘continuum’, ranging from real risk to perceived risk. Real risk was explained to me as the likelihood of someone being stung:
‘If I child came into your back yard and kicked your beehive, would they get stung?’ - Team Leader, Environmental Heath Team, Dandenong.
Perceived risk was explained as the fear someone may experience if they thought or imagined that they might be stung. In my mind, neither represents an objective assessment of the actual risk based on objective knowledge of bee husbandry, bee biology, bee behaviour or human factors such as management, and compliance with the Code of Practice.
The difficulty with the notice I was issued is multifaceted:
- There was no objective assessment of beekeeping practice against established requirements.
- Opportunities to address concerns or modify husbandry conditions were denied.
- The requirement to comply before the matter is heard by a magistrate places the burden of proof on the beekeeper. While failure to comply could result in a substantial fine. The onus was on me to initiate court proceedings. (I imagine many beekeepers would not be prepared to take this on).
- The issuing of the notice is at the discretion of a single Environmental Health Officer who in all likelihood has no experience with beekeeping, no knowledge of the Code of Practice, no knowledge of or scientific data relating to bee related injury, hospital admissions or disease.
- There does not seem to be any objective link between actual risk and ‘perceived’ risk.
- The notice was triggered by the ‘fear’ reported by a single neighbour.
Council largely rebuffed approaches by me, and those of the Victorian Apiarists’ Association at all levels, and refused to review either my beekeeping, or their notice. We were at an impasse.
I approached one of my local councillors. Working with him I sought to have the matter raised in council. We rallied a number of beekeepers to attend the meeting of the council. I worked with Councillor Brown to submit a series of questions for council and he was able to submit a call for a report into beekeeping within the municipality.
In early December I lodged an application in the Dandenong Magistrate’s Court, seeking to have the notice reviewed by a Magistrate. Given no other option I had briefed and was ready to engage a solicitor prepared to represent me in the court. I was looking at legal costs that would amount to thousands. I served a notice of hearing date on council.
Finally we had some movement. In response, council acquiesced to my request for a meeting. At this meeting, Officers acknowledged that I complied with all beekeeping laws. They agreed to withdraw the prohibition notice. I agreed to raise a shade cloth extension to a section of my back fence where vegetation had recently come down. This barrier now serves to obscure the view of my hives and causes bees to fly a little higher before dispersing. While going beyond the requirements of the Apiarists Code of Practice, raising the fence height in this section was a concession I had offered to health officers from my very first conversation. I was left frustrated but relieved that officers had finally withdrawn the notice. I could avoid court (and its associated costs).
The use of the Public Health and Wellbeing Act 2008 (Victoria)(part 6, 61: Nuisances) continues. The interpretation of the act to include ‘fear’ anxiety’ and ‘mental’ aspects of individual health remains to be tested in court. Meanwhile municipal councils are attempting to remove land use rights by directing the removal of legally held hives. They are making subjective assessments based on the self-reported fears of neighbours. We do not yet know if these directives will be upheld by a magistrate.
Key here is the definition of ‘nuisance’ and ‘risk’ used by the municipal officers. In their own report Council officers speak of ‘perceived risk, which often manifests in a fear reaction. This risk impacts on the mental aspects of public health because it can lead to stress, anxiety and in extreme cases, even physical reaction to the fear of bee sting.’ Further; ‘Whilst this fear may be unreasonable in relation to the actual risk associated with bee sting, it can nevertheless be a significant issue for the person experiencing it. As indicated above, that fear can lead to health and wellbeing concerns for the individual. An EHO [Environmental Health Officer] therefore must take this into account when assessing the risk associated with a particular situation.’
The move from objective assessment to individual perception and fear as listed above is highly concerning. The inclusion of ‘mental aspects’ and anxiety’ as public health concerns would appear to be contrary to the intention of the Public Health and Wellbeing Act 2008. The directive to remove hives without needing to investigate and establish an actual health risk is problematic.
There are 46 registered beekeepers within the municipality. Others may be unregistered or registered elsewhere while agisting hives within the municipality.
Councils often consult and work together. The Public Health and Wellbeing Act 2008 is state legislation. There is potential for it to be used in the same way by every municipal body in the state.
I breathe a sigh of relief: for now. My thanks to members of the Victorian Apiarists’ Association (State-wide and Melbourne Section in particular), your collegial support, advice, and willingness to stay the course helped me win this one. You all know who you are!
References:1. Public Health and Wellbeing Act 2008 (Victoria) http://www.legislation.vic.gov.au/ Search Acts by year, then title.
2. Council Meeting Agenda: 6.5.1 Keeping of Bees within the Municipality. Resolution item 2.2.6 – [responding to the question] ‘Upon what basis are managed hives/bees assessed as a [sic] risk to the community?’ http://www.greaterdandenong.com/Documents.asp?ID=21698&Title=Minutes+23+January+2012&Type=d(Item can no longer be found)