Abatement Notice of Statatory Nuisance over Dogs Barking

[steampowered]

Have a look at the legislation here: http://www.legislation.gov.uk/uksi/1995/2644/regulation/2/made. The following seems to be grounds which are relevant to you and could be a basis for challenging this:

 

- Para 2 (a) - The barking does not amount to a statutory nuisance. The court is supposed to consider whether the barking interferes with your neighbour's enjoyment of his land in an unreasonable way. Relevant factors include location, time, duration, frequency and whether the problem is malicious, negligent or innocent. To argue that this was not an unreasonable interference you could make the following points, obviously feel free to adapt them as you know this stuff better than me:

• Location: The barking occurs in an area where many people keep pets and accordingly some barking is to be expected (refer to your other neighbour's Jack Russels as an example of this).
  
• Time: The barking never occurs at night and only when most people are at work.
  
• Duration: The barking is normally very short and only rarely occurs for longer than [x].
  
• Frequency: The barking is occasional and not constant.
  
• Nature of the problem: You are doing all you can to minimise the barking by [set out what you are doing to minimise the problem].
  
• Contribution by the neighbours: The problem is made worse by the actions of your neighbours. The barking which preceded the complaint was caused by the neighbours mucking about in your porch [not sure I understand your first post on this bit so adjust as necessary]. The dogs so not like your neighbours because they nearly knocked down your door while drunk and started being aggressive, hence the dogs got defensive.
  
• Unusual sensitivity: The nuisance is evaluated from the viewpoint of an unreasonable person, if you have good reason to think your neighbours are "hypersensitive" then point this out.
  

- Para 2© - The authority have unreasonable refused to accept alternative requirements.

• The authority failed to engage with you and did not properly investigate the complaint or attempt to see if there were any alternatives.
  
• If the terms of the notice as unreasonable or impossible to comply with, point out what the problems are.
  
• You are taking all reasonable steps to minimise the problem [set out what you are doing].
  

- Para 2(j)(i) - That the notice might lawfully have been served on another person also responsible for the nuisance. Explain about the Jack Russels and that some (all?) of the barking is down to them.

 

What do you actually need to do? There does not seem to be a particular template for this, even on "paid for" legal services. I did find a template at the bottom of this PDF which may be useful: http://portal.nasstar.com/33/files/articles/Birtles_StatutoryNuisance.pdf. Prepare a word document along those lines which includes your edited version of the points I make above. I would give the relevant Magistrates Court a call, explain what you want to do and whether there are any formalities (probably just a matter of bringing the document to the court and filing it in person with the clerk).

 

Personally I think you have a good chance of getting this set aside. The notice strikes me as rather unreasonable. I do not think it is unreasonable for dogs to be barking in a neighbourhood which has a lot of pets. The bit which gives me cause for concern is the number of dogs you have as a breeder, the council could say you should be living somewhere with more space if you are going to have so many dogs. However it does seem to me that you are doing your best and that the council have been a bit lazy in just deciding to issue a notice rather than properly investigating.

 

Note the tight deadlines. The time for appealing is 21 days. You must be pretty close to this.

[steampowered]

What does the letter say?

[steampowered]

Is there anything about what you can do to contest or appeal it?

 

It doesn't seem to me that you are in breach of the Abatement Notice. The abatement only requires "suitable steps", it does not impose an absolute obligation to stop all barking. The dogs did bark but it seems to me that you did take "suitable steps". I guess the question is whether you have the energy to fight this.

[steampowered]

What is the exact wording of the abatement notice?

[steampowered]

Thanks. I'll try to look in tomorrow.

[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]

[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.

[steampowered]

Fair enough. Hope it goes well for you.

[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?

[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.