The Regulation team of Matt Bosworth, Semin Taner and Ashmeet Wadwa represented a homeowner, Matthew McNiff in bringing two prosecutions under the Environmental Protection Act 1990 for breach of statutory nuisance caused by a local Boarding Kennels and Cattery.
Mr McNiff purchased his property, Manor Farm, in 2000 and has resided there since that date. A part of that property abuts fields which form part of Low Farm Boarding Kennels and Cattery. Low Farm is the property owned and operated by Sharon and Russell Tidnam.
The kennels had operated since 1988. However at that time they housed no more than 11 dogs. Over time, and after Mr McNiff purchased his home, this number increased with multiple extensions. By 2015 the kennels could house up to over 40 dogs.
Mrs Tidnam informed the court that this number was "regularly exceeded" even though (a) her licence only permitted 30 dogs and (b) a section of the kennels did not gain planning consent until December 2018.
The Tidnams had been made aware of the issues arising from the new kennel blocks and the noise that permeated from them became a concern from early 2016. In September 2016 Mr and Mrs McNiff asked their neighbours to take some action due to an increase in noise. They asked Mrs Tidnam to take action on no fewer than ten occasions. However she ignored those requests and a year later nothing had changed.
Proceedings were brought in 2018 alleging a statutory nuisance as defined by sections 79 (1)(g) and 82 Environmental Protection Act 1990 with evidence comprising audio and visual recordings by the McNiffs and recordings taken by experts. The experts agreed barking could clearly be heard at Manor Farm.
The matter was heard before District Judge Snow at Norwich Magistrates Court in July 2018. The Court found to the criminal standard (beyond reasonable doubt) that this was a statutory noise nuisance. District Judge Snow went on to make formal Orders in the matter consisting of a list of conditions that the Tidnams had to comply with.
The Tidnams did not carry out any remedial works to address the problem and the noise continued to the extent that Mr McNiff was forced to bring a second set of proceedings of further statutory nuisances. The second sets of proceedings were heard by District Judge at Great Yarmouth Magistrates' Court in July 2019, DJ Dodds even conducted a site visit.
The defence representatives in the second set of proceedings took every possible legal and factual argument in attempting to have matters adjourned, stayed generally or run through abuse of process/legal argument that had to, by necessity, be rebutted causing a great deal of extra work to be undertaken in the second set of proceedings by all parties but to no avail – DJ Dodds found the nuisance had continued and ordered the defendants to carry out works to remedy the situation.
At the sentencing hearing of the matter the defence made several references to the fact of Mr McNiff and his wife instructing Russell-Cooke as being excessive and disproportionate; that he had instructed "Rolls-Royce" lawyers instead of instructing local firms. The Judge dismissed those arguments stating that, the prosecution also had the same right as a Defendant to choose their representation and in light of the importance of the case to the McNiffs they were entitled to a Rolls-Royce service.
DJ Dodds rejected the defence counsel's assertions that prosecution's costs were disproportionate or excessive and felt a compensation order should be prioritized over a fine. He awarded a total £3000 as compensation and costs in full in the amount of £93,000 to be paid within three months.
The case is a significant one in that it shows how individuals can use the statutory framework to stop noise nuisance via the Environmental Protection Act to safeguard their right to peaceful enjoyment of their home when attempts to settle matters amicably have failed because of the intransigence of the offending party.
Russell-Cooke instructed Miles Bennett of 5 Paper Buildings throughout.