Abatement Notice of Statatory Nuisance over Dogs Barking

[steampowered]

Thanks. I'll try to look in tomorrow.

[jm2k]

Noise Abatement Letter

 

Noise Abatement Notice a

 

Noise Abatement Notice b

[jm2k]

Thanks. I'll try to look in tomorrow.

 

thank you

[jackieandwayne]

Ok, please telephone the Kennel Club, and ask for a recommendation for a behaviourist in your local area (yes, Dog Whisperer if you like). Any behaviourist worth their salt will work with you, show you how to properly control the situation, and then appear in court for you, to tell the magistrates what progress you have made. My friend has to do this frequently under the Dangerous Dogs Act, because of the nature of the dogs (and owners!) she work with so really noise should be a doddle.

 

I don't know what the legal bods on here think of this: I can read how stressed out you are, to the extent that you seem to have become a prisoner in your own home. And perhaps it might be better to accept the caution this time, and then do as I say above, quickly. You could I suppose say that you accept the caution so long as the Council accepts (you have evidence) that you have been harassed by the neighbours, and that you are working hard to do all that you can to control the barking. And everytime next door do something to you, record it, report it, as appropriate, and above all, make sure the noise abatement team have it all on file.

 

I understand its hard when you are depressed, but come on now, we're talking about our pets here, and that should fire you up.

 

Where I live, my dog roars like a lion when someone knocks the door. He very friendly mind. He occasionally barks at strange noises outside our home. And if one of my neighbours the cheek to complain about this perfectly normal behaviour, I think I'd then have to make an issue out of: a) the 12 week old male kitten (Still with his whatnots) I found climbing up my parrot cage in my lounge the other day b) the filthy smell he left up my hallway during his swift exit and then c) the crap in my aloe vera plant outside my front door. Just to make you laugh a bit!

 

I'm sure our legal friends will advise you how to sort all this out, but really, if you can just get those dogs quiet, all this will go away, and it will be interesting to see what shocking wrong doing the neighbour accuses you of next - some people are like that and there's usually one in every street.

[jackieandwayne]

Ouch too late for caution, but I am pleased to see you say you have to fight. Don't do it alone, get some help on board, like I suggested.

[steampowered]

The abatement notice says you must ensure that the barking from the dogs does not materially interfere with the use and enjoyment of any other residential premises. This is a fairly strict obligation. This is inconsistent with the description given in the caution notice. The caution notice only talks about taking "suitable steps", which is a weaker obligation and an incorrect description of the abatement notice. Not enough for a Defence but it does indicate poor attention to detail at the council.

 

Based on your posts it seems pretty clear that this has not been investigated properly and that the evidence held by the council is limited. I suspect that this is not a case the council is likely to take to court, and that if it did go to court it could be defended.

 

If you do not accept the caution there is a risk that the council will prosecute you. This would lead to a short court hearing at the local magistrates court. If the court decides you are in breach of the abatement notice then you will be fined. For something like this I imagine the fine would be very small.

 

On the other hand, if you do accept the caution then the council will record this. You will be setting a precedent. Once you accept a caution it will be much more difficult to contest the next one. I imagine the neighbours are going to make more complaints in the future and accepting cautions would put you in a very weak position.

 

Accepting the cautions would be the easiest thing to do. But it would put you in a very bad position going forward. You should have appealed the abatement notice first time around; and each time this goes on without being contested the more difficult it will get. If you are ever going to contest this then I think you have to do it now. If it was me, I would refuse to accept the caution and I would explain the reasons why in a letter similar to the below. There are square brackets for you to fill in. You will need to make your own decision.

 

I would suggest that you do not attend any more interviews with the council, especially interviews under caution. The only time you have to attend an interview is if you are arrested (which you won't be). Make them write to you.

 

--

 

Dear Sirs

 

I refer to your letter dated [x]. I am writing to advise you that I do not believe that I am in breach of the abatement notice. Accordingly I will not be accepting a caution.

 

The first allegation

 

I refer to the first allegation relating to x/x/13. On this date my mother had vertigo and collapsed in her home 2 miles away from me. I am her only living relative so I am her emergency contact so of course I rushed out to attend to her. I was away from my home for approximately 30-40 minutes to ensure she was safe and I come home promptly. It is possible that the dogs barked during the 30-40 minutes I was away. There was no breach of the abatement notice since this is not sufficient to constitute a material interference with the use and enjoyment of any other residential premises. If this incident is viewed as sufficient to constitute a material interference, it would be impossible for anyone within [area] to keep dogs at all.

 

Alternatively, needing to leave my house for 30-40 minutes due to the collapse of my mother is a reasonable excuse pursuant to section 80 (4) of the Environmental Protection Act 1990.

 

The second allegation

 

I refer to the second allegation relating to x/x/13. On this date I was admitted to the Accident and Emergency department of Hospital [x] due to a [describe - foot injury]. I returned home as soon as I was able. Again, it is absolutely denied that any barking during that very short period of time is sufficient to constitute a "material interference" with the enjoyment of any other residential premises.

 

Alternatively, attending the Accident and Emergency department for a short period is a reasonable excuse pursuant to section 80 (4) of the Environmental Protection Act 1990. I think you will have great difficulty persuading a judge that an abatement notice should prevent people from seeking emergency medical assistance.

 

The factual background and steps that have been taken in response to the abatement notice

 

As you are no doubt aware, the legal test to determine whether there is a nuisance involves balancing a number of factors including location, time of occurrence, duration and frequency subject to an overarching test of reasonableness. My dogs do not and never barked constantly [describe nature and extent of the barking]. The barking never occurs at night. Any barking is very short and rarely extends beyond [x] minutes.

 

Since receiving the abatement notice I have taken every possible step to minimise the disturbance. I have gone well beyond taking the "suitable steps" referred to in your letter dated x/x/13. These include [describe steps that have been taken - such as rehoming certain dogs, training them] [in fact, the dogs are now never left alone except in truly exceptional circumstances.]

 

My understanding is that the allegations have been made by [neighbours]. You should be aware that [neighbours] have been intentionally and deliberately agitating the dogs through putting their hands through the fence dividing our two properties and waving at the dogs, as well as [describe anything else]. I have provided evidence of this to you [describe]. It is not consistent for allegations of material interference to be made when any such interference has been actively encouraged and exacerbated by [neighbours].

 

For the reasons set out above, I am entirely confident that I have fully complied with the abatement order and that there is no basis to allege that my actions have led to a material interference with any other property. In the event that a prosecution is brought, it will be vigorously contested and I will draw this letter to the attention of the court.

 

Yours faithfully

jm2k

 

Attached: [Attach any relevant evidence you have to hand. I am thinking of A+E admission, mother's medical reports, photos of the neighbours]

[jm2k]

That is brilliant, thank you.

Sorry for my delay in replying, i had my wisdom tooth out and been offline.

Will get this printed off in the morning and get the evidence, to give to the council and will update as soon as they reply.

I really appreciate all your help and assistance so much.

[jm2k]

Letter received today from council:

 

RE: XXXX County Council V XXX Me

 

Thank you for your letter dated xx Oct 2013. I am currently taking my clients instructions regarding the contents of the letter and I will revert to you in due course. In the interim, please can you provide copies of the evidence you list at the conclusion of your letter as I will need to review this before considering its relevance.

Yours faithfully

 

xx

Solicitor

for Assistant Chief Executive

Legal and Regulatory Services.

 

 

(i listed evidence I would provide as being the medical report from A+E, mothers medical illness, photo's etc but have not applied to receive the medical reports yet as they are £25 per person (£50 total) and not being in employment it would be very costly, but if it did result in court, then we would obtain them.

 

Photo's are easy to sort and print out, but im also thinking of obtaining a witness statement from both the interview officers from the council who both witnessed my extreme difficulty in walking, as well as the council CCTV which would also show this?

Can anyone advise what i need to write to request this evidence? Or is it not worthwhile?

Or can i refuse until i actually know im going to court?

Should I ask them how long this will take to decide as they were harassing me constantly via letters and repeated phone calls to reply to their caution demand, but now they are happy for me to wait with my nerves and anxiety for them to decide?

 

many thanks

[steampowered]

Personally, I would provide them with the evidence that is available to you. If you refer to evidence in your letter you should be prepared to provide it. If you don't provide a copy of the document it is very difficult for them to take that document into account.

 

As long as the medical reports can be obtained later, I would simply state in your letter that these can be obtained at cost if the council would like to pay.

 

I'm not sure you would be able to get witness statements at this stage, although you could certainly mention that the interview officers would have viewed your difficulties walking.

 

There is no obligation to respond but it would be sensible to do so in order to minimise the risk of court proceedings being issued. It isn't harassment if you haven't responded to their letters and phone calls - seeking a reply to the caution demand is reasonable. If you don't respond to their letters and calls you must expect them to keep trying.

[jm2k]

Kept it simple and said that the neighbour harassment arrest and charge can be obtained from their forum meeting police contact as i know she meets them almost weekly as the police contact has spoken with me in the past couple of weeks about this.

 

And I stated what you wrote about medical evidence.

 

Will deliver it Monday.

 

thanks again

[steampowered]

Fair enough. Hope it goes well for you.

[jm2k]

Fair enough. Hope it goes well for you.

 

In the post today is the court summons to magistrates court in 10 days.

However, i now have copies of the two council witness statements from the 'breach' dates which i for had before.

 

My request to the hospital for proof of admission is being dealt with so that should be here shortly, same to the doctor request of proof.

 

What do i do in the meantime? Im devastated they think neither incidents were severe enough to accept!

[steampowered]

Sorry to hear about that. Unless you have been asked to do anything else, the key thing now is to fully prepare for the hearing.

 

You need to be very clear and systematic about how you approach this. It should be quite a short hearing so you need to get the magistrate on your side straight away. You should try not to come across as someone who is just throwing a list of excuses at the wall to see what sticks. You need to have a very clear structure for the points you want to make, I suggest preparing by noting down your points in a numbered list before the hearing.

 

The first thing is to make sure you are clear about what the law is and focus on it. I suggest you print a copy of the legislation (or at least the section 80 (4) which is the section they allege you have breached - http://www.legislation.gov.uk/ukpga/1990/43/section/80).

 

 

If it was me, I would present my case by very briefly outlining what happened and then giving three reasons why no offence has been comitted in the following order:

• (1) the barking does not amount to a nuisance, as there was no unreasonable interference with anyone else's enjoyment of property, as the barking was occasional and partially results from aggravation by the neighbours (this is discussed in detail in the appeal letter on the first page which you didn't file);
  
• (2) there has been no breach of the abatement notice since you fully complied with it. The notice requires you to take reasonable steps to reduce barking and you did so (need to describe in detail all the steps taken to try and deal with the problem);
  
• (3) in relation to both incidents, there was a 'reasonable excuse' as permitted by section 80 (4) (need to carefully explain what the excuse is for each incident and ideally bring documents supporting this to court).
  

If anything stated in the council's witness statements is factually wrong then you also need to challenge their version of events.

 

Just so its clear - you MUST attend this hearing, even if you are ill or stressed. Courts generally do not accept excuses for not attending. It will feel wonderful when its over.

[steampowered]

Hi jm2k,

 

Hope everything has gone well for you. I'd be really interested to know how the hearing went, if you are comfortable providing this information?

[jm2k]

Hi! Well - it was truly awful! i was a wreck and not much better today so hope this reads ok:

I was still awaiting my evidence from hospital so i asked for the case to be adjourned until i had all my evidence for my case. (typically arrived today) but they were not keen and continued without accepting my request for postponement.

 

The spokesman started out to be a very arsey d!ck.

I pleaded not guilty with extenuating circumstances and explained correctly why for each, as you advised.

Before id even finished he said it was Mitigating not extenuating and that really threw me way off course as i didnt know what to say.

He was very harsh and hitting me with questions which i was having increasingly difficulty to answer properly but did try my best, but nothing was 'acceptable' to him as being reasons for the dogs barking and kept repeating why plans were not in place before the breach! and what could i have done differently at the time and why didnt i?

Even though i kept trying to say things have been improved drastically since and there have been no breaches etc in all this time i was always thrown back to AT THE TIME of the breaches themselves.

i explained things take time to assess with new homes for dogs etc.but at the time i was in a rush in emergency. he asked why i didnt take all dogs with me? it actually never entered my head to do that!

 

He asked about my health as i told them i was finding this very diffcult, especially to explain things, so he asked about my health. i tried to say about medication and skimmed over the conditions briefly, but he said 'well, anyone can take medicine, it doesnt mean anything' - which meant i had to really open up and explain my health which i found extremely distressing, and uncomfortable. i dont discuss things to my Dr let alone a group of strangers. however, it did make them understand why i wasnt coping too well and they give me a little more leeway?

council quipped i had rehomed 1 dog, but i corrected them and said it was 2 as i stated in the interview and its in the transcribe.

he actually stated he cant be seen to 'bully me' which is exactly what it felt like in the beginning with his whole demeanor but when the bench went for recess for me to try to compose myself, he was talking to me a lot better.

 

in the end, i deteriorated so much with being so upset it was adjourned to enable me to get an advocate to support me and seek further advice as it would be a very costly case if it were to go to trial and lost.

 

However, some things he said between recess:

council said they offered a 'simple caution' which i refused. i explained i refused it due to circumstances and it would be easier for council to prosecute me if anything ever happened again. He agreed.

however, the council were present during this and could hear everything discussed so i was very cautious.

he did try to see if i could get legal aid based on my health, but as its not a prisonable offence, i couldnt so he did actually end up trying to help me!

 

speaking to one of my health advisers today, they told me the council had contacted them for information about me, which they couldnt give due to confidentiality and they were asking how many dogs etc i had and what i do with them! council not disclosed this to me. council said they understood if they couldnt disclose the information! can i use this in my defence at all?

 

I cannot defend myself, i know that much. so im speaking with a solicitor tomorrow. he was actually present in the room waiting on his next trial and not connected with the council so he will know a fair bit of what went on, but without the file i have on the history etc. im hoping to pay it off on an invoice 28 days so it buys some time.

 

court is adjourned for 2 weeks so whatever help i can get and as much as possible im needing.

 

i did find this on the web:-

Extenuating circumstances are circumstances surrounding the crime to try to make the crime less serious. Things like intent, or excuses about the crime such as "I did not know the gun was loaded".

Or my client has dimished capacity. He cannot think to understand what he did. They are meant to reduce the punishment or the charge

 

Mitigating circumstancesare the conditions or happenings that do not justify or excuse the crime, but are about the person charged or events surrounding it that may have caused the bad action.

A boy kills his father because his father was beating him all the time. The crime of killing is not justified or excused, but the fact that his father was beating him should reduce the sentence.

Or, my client is 85 years old. Prison is a death sentence. It would be things that reduce the punishment because of things about the person who did the crime.

 

This is a real finepoint difference and I had to think about it. There are things that are BOTH extenuating and mitigating circumstances.

[steampowered]

OK, so what actually happened? The hearing was adjourned?

 

If you feel you can't handle it then yes it is better to get a solicitor involved.

 

I think it is very important that you do not complicate this case. Do not get confused by all the different strands, because if it sounds to the Magistrates that you are just reeling off a list of excuses that will not work. You need to be very clear about EXACTLY what you are being accused of. The law on this is only one sentence long, and you need to be very clear about this and repeatedly draw the court's attention to it. The only thing Section 80 (4) says is If a person on whom an abatement notice is served, without reasonable excuse, contravenes or fails to comply with any requirement or prohibition imposed by the notice, he shall be guilty of an offence.

 

It is important to be clear about this. You are not trying to make a bunch of excuses. You are not trying to explain extenuating or mitigating circumstances. This is not a discussion about whether you are a nice person or not. You are trying to convince the Magistrates that the offence, underlined above, has not been committed.

 

As per my post above, there are basically three arguments here. The first argument is that the conduct complained of is not a nuisance in the first place. The second argument is that you complied with the abatement notice because you did take reasonable steps to prevent the barking. The third argument is that you had a 'reasonable excuse' for failing to control the dogs on the two occasions you are being prosecuted for. It is important to understand that, legally, there is a very important difference between not breaching section 80 (4) in the first place because you had a reasonable excuse, and admitting you breached section 80 (4) but had some kind of excuse.

 

 

The spokesperson was correct to keep bringing it back to the time of the breaches themselves. I emphasise once again this is the ONLY thing that is relevant. The ONLY thing that matters is whether or not you are guilty of breaching section 80 (4), which is reproduced in full by the underlined words above. You need to focus on this and ignore everything else. If you just list off a bunch of excuses you will not be successful. You have got to think like a lawyer here and only focus on why you are not guilty of the conduct in the underlined words.

 

 

I suggest you have a print-out of section 80 (4) in front of you at all times, keep referring to it and keep drawing the court's attention to it.

 

This is obviously very stressful for you. I understand the temptation to explain your medical problems and stresses to the court, no doubt it is easier for you to talk about these excuses than it is to focus on what actually happened on the days you are being accused of breaching the abatement order. It is very important you do not treat a court case like you are trying to justify yourself to a friend. I believe you are capable of doing this yourself if that becomes necessary, but you must have self-discipline and you must focus on what you are actually being accused of, which is breaching the abatement order on the two dates mentioned by the council. Do not be tempted to confuse this by talking about other things.

 

You can't find the answers to anything raised in court online or in any legal textbook. The answer is section 80 (4). If the spokesperson raises any points you don't understand, you simply ask for a moment to think about it and re-read section 80 (4). You are being accused of breaching section 80 (4), nothing else is relevant. If you do not understand the point he is making (such as the difference between extenuating and mitigating circumstances), ask him to clearly explain the point and explain why it is relevant to section 80 (4) ... and if he gives an inadequate explanation ask him to explain further.

 

 

Its tough and stressful but you can get through this, and does sound like you have a very strong case if you can get it across to the magistrates.