Vince v Director-General, NSW Agriculture

[2001] NSWADT 78

CITATION:	Vince -v- Director-General, NSW Agriculture [2001] NSWADT 78
DIVISION:	General Division
PARTIES:	APPLICANT Allan Vince RESPONDENT Director-General, NSW Agriculture
FILE NUMBER:	013002
HEARING DATES:	30/03/2001
SUBMISSIONS CLOSED:	03/30/2001
DATE OF DECISION:	05/18/2001
BEFORE:	Hennessy N (Deputy President) at 1
APPLICATION:	Apiaries Act - prohibit the keeping of bees - Apiaries Act - removal of apiary - Bees - prohibit the keeping of bees - Bees - removal of apiary
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Apiaries Act 1985
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT N Abadee, counsel
ORDERS:	1 The order of the Director General prohibiting Mr Vince from keeping bees on his property and directing him to remove the apiary from his property is affirmed

Introduction

1 Mr Vince is a bee-keeper. He is asking the Tribunal to review an order made by the Director General, NSW Agriculture. The order, made on 2 January 2001, prohibited him from keeping bees on his property and directed him to remove the apiary from his property. The Director General made the order under section 18 of the Apiaries Act 1985. The reason for the order was that Mr Vince’s next door neighbour, Mr Simmons, has a life-threatening allergy to bee stings. In the Department’s view the presence of active beehives on a neighbouring property heightens the risk of Mr Simmons suffering a bee sting.

Jurisdiction

2 The Tribunal has the power to hear Mr Vince’s application under s 35(2) of the Apiaries Act 1985. That section states that:

A person who is the occupier of, or otherwise has an interest in, premises in respect of which the Director-General has made an order under section 18 who is aggrieved by that order may apply to the Administrative Decisions Tribunal for a review of that order.

Relevant legislation
3 Under s 18 of the Apiaries Act 1985 , the Director General has power to make orders like those he made in relation to Mr Vince’s premises. So far as it is relevant to this case, that section states that:

(1) If at any time the Director-General is satisfied on reasonable grounds that, in relation to particular premises on which an apiary is being maintained:

(c) for any other specified reason those premises are unsuitable for beekeeping,
the Director-General may, by order:
(d) prohibit:
(i) the keeping of bees on those premises; or
(ii) the keeping of more than a specified number of beehives on those premises, after such date as may be specified in the order (being a date not earlier than 14 days after the date of service of the order); and
(e) direct that, not later than that date, the person who is maintaining the apiary or, if no person is maintaining the apiary, the person who established it:
(i) remove the apiary;
(5) An order under subsection (1) or (2) shall, unless quashed under section 37, remain in force until it is revoked by the Director-General by a further order.
Issue
4 Is the Director General’s order prohibiting Mr Vince from keeping bees on his property and directed him to remove the apiary from his property, the “correct and preferable” order? In particular, are Mr Vince’s premises unsuitable for beekeeping because his next door neighbour has a life threatening allergy to bee stings?

Evidence

5 The documentary evidence in this case consisted of:
· statement of Emma Kelly, regulatory officer NSW Agriculture, dated 7 March 2001;
· statement of Dr Sheryl van Nunen dated 2 March 2001;
· statement of Wayne Simmons dated 2 March 2001;
· statement of Margaret Simmons dated 6 March 2001;
· statement of Robert Bowman, Senior Inspector (Regulatory) NSW Agriculture, dated 6 March 2001;
· statement of Ronald Irving, dated 27 March 2001;
· statement of Owen Lowe dated 28 February 2001;
· statement of N Cutts, dated 22 February 2001; and
· statement of P Bond, dated 1 March 2001.
6 Oral evidence was given by Mr and Mrs Simmons, Dr van Nunen (by phone), Mr Bowman, Ms Kelly, Mr Lowe and Mr Irving. Neither Mr or Mrs Vince gave oral evidence.

7 Mr and Mrs Vince wrote in their application to the Tribunal that they have been keeping bees at their property for 20 years without complaint. Mr and Mrs Simmons have lived next door to Mr and Mrs Vince since 1996. Mr Vince is a member of the Amateur Beekeeper’s Association (Parramatta Branch) and he operates the hives in accordance with the Code of Practice. Mr Vince was an inaugural member of the Swarm Hotline which offers the public service of removing swarms during the bee swarming season.

8 In September 1999 Mr Simmons was stung by a bee while he was in his back yard. He developed a lump on the side of his head and had a headache for a week. On 26 November 1999 he was stung again while in his back yard. This time he had a much worse reaction. He rang his wife and an ambulance. He went into anaphylactic shock and ambulance officers gave him two injections of adrenalin and two injections of narcane to help him breathe. He was taken to Ryde Hospital. The Resident Medical Officer recorded that Mr Simmons has a severe allergic reaction to bee stings leading to difficulty breathing and unconsciousness. This evidence was confirmed by Dr van Nunen, a consultant physician in clinical immunology and allergy at Royal North Shore Hospital. Mr Simmons has been undergoing weekly desensitisation treatment from Dr van Nunen since January 2000. She recommends that Mr Simmons continue the treatment for 10 years. Mr Simmons carries adrenalin with him at all times so that he can inject himself straight away if he is stung. In Dr van Nunen’s opinion Mr Simmons suffers from a very severe bee venom allergy which is life threatening. The most likely outcome if he is stung by a bee today is that he would suffer a further life threatening reaction.

9 Mr Simmons said that since he was stung by a bee the second time, he is extremely cautious about going into his back yard. He still mows the lawn but does not spend any leisure time in the backyard because of his fear of being stung by a bee.

10 Mr and Mrs Simmons have seen both live and dead bees inside and outside their house. Mr Simmons has seen thousands of bees swarming in his backyard about six times. Mrs Simmons has found dead bees tangled in the washing after she has brought it inside.

11 Mr and Mrs Simmons’ garden has a fig tree, an orange tree and a vegetable patch. There are also several pot plants. Sometime prior to November 1999, Mr Vince’s bees set up a hive in the orange tree in Mr Simmons backyard. Mr Simmons asked Mr Vince to remove the hive.

12 Mr Bowman manages a team of inspectors who inspect, certify and investigate matters which arise under certain legislation including the Apiaries Act 1985. He is also a registered bee-keeper. On 28 September 2000, Mr Bowman asked Ms Kelly, a regulatory officer with the Department, to visit Mr Simmons to investigate his nuisance bee complaint. She spoke to Mr Simmons and then looked over the back fence where she saw one active triple deck bee hive. A triple deck hive contains 3 boxes stacked on top of each other and houses approximately 80,000 bees.

13 Ms Kelly rang Mrs Vince and asked her to remove the hives because of Mr Simmons’ allergy. Further conversations took place between the Vince’s and officers of the Department which are not relevant to any of the issues raised by these proceedings.

14 Mr Bowman gave evidence that the presence of active beehives on a neighbouring property heightens the risk of Mr Simmons suffering a bee sting. This was the reason for making the prohibition order.

15 Mr and Mrs Vince organised for four gentlemen, Mr Irving, Mr Lowe, Mr Bond and Mr Cutts, to give expert evidence in support of their case.

16 Mr Irving is an experienced bee keeper who has kept at least two working hives of bees in his suburban garden for the last 20 years without complaint from any neighbours. He has been an active member and office holder in two Amateur Beekeeper Association (ABA) branches since 1981. In 1988 he was elected President of the State Council of ABA of New South Wales. As far as he knows, the Vince’s regularly replace queens with docile bees. This ensures that a docile strain of bees is present to work the local area and discourages feral bees from entering to collect food. Mr Irving also said that the Vince’s bees are located in an ideal position to avoid nuisance and there is nothing in the Simmons property that would attract bees, other than in desperate times.

17 Mr Peter Bond, the Manager of the Beekeepers’ Information Hotline, provided a statement which said that Mr and Mrs Vince have provided an essential, voluntary public service for the last ten years collecting bee swarms. According to Mr Bond, if they were not available, people may have to wait days for bee swarms to be removed.

18 Mr Lowe, a lecturer at the University of Western Sydney in bee-keeping, gave evidence that the Vince’s remove nuisance swarms, temporarily site them and re-queen them with docile stock before relocating them on one of their country sites. They have been the only beekeepers servicing the Ryde area for some time. The Vince’s bee hives pose no community threat; on the contrary, they perform a valuable community service. In his view, there is no statistical evidence that the presence of docile well managed hives increases the risk of being stung. He admitted that dead bees can sting a person, especially if the person treads on them in the period before their body dries out.

19 Mr Cutts, a former apiary officer with NSW Agriculture, offered the opinion in his statement that “it was most unlikely that the neighbour of Mr and Mrs Vince suffered a sting from one of their bees.” The basis for this conclusion was that Mr and Mrs Vince’s bees are docile and non-aggressive and are well cared for and maintained. In addition, feral bees visit suburban back yards and gardens. He does not consider that a few hives in Mr and Mrs Vince’s yard pose any threat to their neighbours. Mr Lowe supported this view in his statement. He said that Mr and Mrs Vince’s activities pose no threat to the community.

Applicant’s submissions

20 In Mr Vince’s view there are many feral in bees in the Sydney area and it is impossible to identify the bees which stung Mr Simmons. He submitted that the removal of hives from his property will not necessarily overcome Mr Simmons’ problem. Secondly, Mr Vince submitted that they are providing a community service by collecting bee swarms and no-one else can perform that service. Thirdly, bee keeping is their livelihood.

Respondent’s submissions

21 Ms Abadee on behalf of the respondent, submitted that the evidence of Mr and Mrs Simmons about the presence of live and dead bees inside and outside their house establishes that there is a greater risk of bees entering their property and stinging Mr Simmons than if there were no hives next door. The evidence of the experts called by Mr and Mrs Vince did not establish that bees from the Vince’s property were unlikely to enter the Simmons’ yard.

Findings of fact

22 Certain matters were not disputed. Firstly, Mr Simmons has a life threatening allergy to bee stings. That allergy affects his lifestyle. He is reluctant to go out into his back garden unless he has some particular chore to perform. Even then, he is anxious about the possibility of being stung by a bee.

23 Second, it is not in dispute that Mr and Mrs Vince are responsible and diligent in their bee keeping activities. There was ample evidence that they attempt to abide by good bee keeping practices which minimise the risk that bees will be present outside their yard.

24 Thirdly, there is no doubt that Mr and Mrs Vince were providing a valuable community service in removing feral bees and relocating them.

25 The key question which was in dispute is whether the presence of a triple decker bee hive on Mr Vince’s property increases the risk that Mr Simmons will be stung by a bee. Mr Bowman gave evidence that it did. Mr Irving’s evidence did not go so far as saying that there was no increased risk in those circumstances, but said that the Vince’s bees are located in an ideal position to avoid nuisance and there is nothing in the Simmons property that would attract bees, other than in desperate times. I do not accept the second part of this statement. Evidence given by Mr and Mrs Simmons demonstrated that bees were regularly present in their garden and inside their home and that a swarm had established itself in their orange tree on one occasion. The bees are also attracted to water when there is a shortage near by. This explains why they are attracted to wet washing on the Simmons’ line, which is in their backyard.

26 Mr Cutts was not available to give oral evidence and in those circumstances I do not give his statement a great deal of weight. Mr Lowe argued that there was no proof that there was any higher risk of a person being stung if bee hives were kept on a neighbouring property.

27 My finding is that there is an increased risk of Mr Simmons being stung if bee hives are kept on Mr Vince’s property. No matter how well managed the hives are, the evidence was clear that bees will search for water and plants if none are available in the immediate vicinity. Mr and Mrs Simmons’ evidence about the presence of bees inside and outside their property was not challenged. I find that while some of the bees could have been feral bees, it is much more likely that they were bees from Mr Vince’s property.

Reasons and decision

28 The question for the Tribunal is whether the Mr Vince’s premises are unsuitable for beekeeping because of Mr Simmons’ life threatening allergy to bee stings. Given my finding that the presence of bees on Mr Vince’s property increases the risk that Mr Simmons will be stung by a bee, I am satisfied that the Director General made the correct and preferable decision in making the prohibition order. The fact that the community will be deprived of a service in collecting feral bees, cannot change the fact that Mr Vince’s property is not suitable for bee keeping activities while Mr Simmons lives next door and continues to be allergic to bee stings.

Order

29 The order of the Director General prohibiting Mr Vince from keeping bees on his property and directing him to remove the apiary from his property is affirmed.