Scottish Sheriff Court Decisions

OF GRAMPIAN HIGHLAND AND ISLANDS AT ELGIN

B321/08

JUDGMENT

by

SHERIFF SUSAN ADIEL OGILVIE RAEBURN, Queens Counsel

in the cause

THE MORAY COUNCIL

APPLICANTS

against

ANDREW DESHWAR DEBIDIN

RESPONDENT

 

ELGIN,       September 2012. The Sheriff having resumed consideration of the cause, makes the following Findings in Facts:-

(1) The applicants are Moray Council.

(2) The respondent resides within Moray. He owns about 5.46 or thereby acres of ground about two miles north of Rothiemay, approximately 4 acres of which are enclosed within a secure compound. Within the compound there are several caravans and small outbuildings and a large kennel block of 17 individual kennels. (The respondent's property is hereinafter referred to as "Woodhead Compound").

(3) Mr David Duncan and Mrs Morag Duncan reside within Moray at Core of Mayen, which is located approximately 670 metres to the north and west of the nearest point of Woodhead Compound and in a comparatively elevated position. Mr and Mrs Duncan have lived there since 1998. They are retired.

(4) Mr Norman Morrison and Mrs Gaye Morrison reside within Aberdeenshire at Woodhead Farm, which is situated some 280 metres to the northeast of Woodhead Compound. Mr and Mrs Morrison have lived there since 2007. Mr Morrison is employed as a joiner and Mrs Morrison is employed as a social worker.

(5) Prior to taking up occupation of his property at Woodhead Compound, the respondent had lived at Ardesier. On 16 November 2005, following upon a criminal prosecution, the respondent was made subject to an anti social behaviour order (an ASBO), prohibiting him from owning or keeping dogs at the Steading, Ardesier for a period of two years. The respondent appealed against the said order. After sundry procedure, the respondent required to remove from Steading by 23 August 2006.

(6) In the meantime, the respondent had endeavoured to buy and to remove to property at Star Head, Craigellachie, but a dispute between the vendor and a neighbour regarding servitude rights of access prevented a concluded sale and removal.

(7) Instead, the respondent bought Woodhead Compound and moved there in the early hours of the morning of 23 August 2006. Work had been carried out in advance to create the Compound area, including the kennel block and to provide basic facilities and utilities.

(8) The respondent moved into Woodhead Compound with his pack of German Shepherd dogs. At present, the pack comprises 46 dogs. The respondent does not breed dogs for commercial purposes. His pack is from a carefully managed and controlled bloodline. The respondent is effectively the leader of the pack.

(9) The respondent devotes all his time to the care, well-being and management of his pack of dogs. Over the last 30 years or so, the respondent has acquired a great deal of knowledge about the behaviour of German Shepherd dogs and he is highly skilled at looking after and controlling his pack.

(10) There are no welfare concerns in relation to the respondent's care of his pack of dogs. The respondent is licensed to acquire food for his pack from abattoirs and he usually buys food for his dogs at Elgin abattoir. He has a dog kitchen on site, which is subject to inspection and approval by the relevant authorities (DEFRA). When the respondent is absent from Woodhead Compound, the dogs are kenneled so as to reduce the risk of disorder.

(11) Mr and Mrs Duncan enjoyed the quietude of Core of Mayen for many years. They are interested in nature and they are keen gardeners. They were alarmed when the respondent moved into Woodhead Compound in the early hours of 23 August 2006 with what they thought to be a truck load of noisy turkeys.

(12) Mr and Mrs Duncan have not met the respondent. They have not visited Woodhead Compound.

(13) Very shortly after the respondent's arrival at Woodhead Compound, Mr and Mrs Duncan sought by various means to have something done about his set up there and its effect upon their quality of life. A formal complaint led to the involvement of Mr Andy Jamieson, ASBO Coordinator for the applicants.

(14) In or about late September 2006, Mr Jamieson assisted in convening a multi-agency meeting to discuss the complaint made by Mr and Mrs Duncan. Present were representatives from Environmental Health, Planning, SSPCA and Grampian Police.

(15) At about this time, Mr Jamieson paid the first of four visits to Woodhead Compound. On each visit, he was unable to gain entry to it or to speak to the respondent. On the first occasion, by peering through the six foot high perimeter fence, Mr Jamieson could see 10 to 20 German Shepherd dogs roaming freely in the Compound area. On two of his four visits, Mr Jamieson could hear dogs barking. His visits took place in or about autumn 2006, spring 2007, late 2007 and early 2008.

(16) Between October 2006 and early 2008, Mr Jamieson visited Core of Mayen on six occasions. On two occasions, while in the garden ground, Mr Jamieson could hear dogs barking.

(17) Between spring 2007 and early 2008, Mr Jamieson visited Woodhead Farm on two occasions. On neither occasion did he hear dogs barking.

(18) Consequent to the initial multi-agency meeting, various consultations took place, including consultation with Aberdeenshire Council. In or about late 2007, a number of local residents organised a meeting, to which Mr Jamieson was invited and at which he attended.

(19) Since the respondent's arrival at Woodhead Compound, Mr and Mrs Duncan have kept noise diaries in which they record and describe incidents or episodes of dog barking, (second, fourth, fifth, seventh, ninth and tenth inventory of productions for the applicants).

(20) Mr and Mrs Duncan claim that since the respondent's arrival at Woodhead Compound, the noise of barking dogs emanating from the Compound has, at times, disturbed their sleep and has frequently interfered with their enjoyment of life at Core of Mayen. They claim that the noise is very difficult to live with.

(21) Mrs Morrison has kept noise diaries since October 2007 (second, fourth and ninth inventory of productions for the applicants). Mrs Morrison claims that the noise of barking dogs emanating from Woodhead Compound has caused her health to suffer and that it has indefinitely postponed plans she and her husband had to establish a pony trekking business at Woodhead Farm. She described being reduced to tears on occasion because of the intrusive and sustained nature and extent of the barking.

(22) On 12 February 2008, a "warning letter" was sent to the respondent on behalf of Mr Jamieson, advising the respondent that an investigation had been carried out following upon a complaint regarding barking dogs, and that there was "evidence to confirm the complaint made is justified in that your dogs continually bark at all times of day and night". The letter went on to state:

"We will continue to monitor the noise caused by your dogs barking and if it stays reasonable, we will not take any more action against you. If we receive more complaints, which we can prove, we will take further action against you. This may include measure under the Anti Social Behaviour (Scotland) Act 2004."

 

 

(sixth inventory of productions for respondent, item 3).

(23) On 4 April 2008, a letter was sent on behalf of the Chief Legal Officer for the applicants to the respondent to warn him that if he continued to allow his dogs to bark at an excessive level Moray Council "will make an application to the Sheriff Court for an ASBO against you. In your case the Council will be seeking an order to reduce the noise made by your dogs by limiting the number which you may keep at your property" (first inventory of productions for the applicants, item 2).

(24) The application for an ASBO was lodged on 28 August 2008, seeking a prohibition from "keeping more than two dogs in any premises within the Moray Council area unless those premises are at a minimum distance of 2,000 metres from any other residential property".

(25) Prior to the lodging of the application, the applicants consulted the "relevant authorities" as defined by the 2004 Act (first inventory of productions for the applicant, items 3 and 4).

(26) Subsequent to the lodging of the application, the applicants instructed Environmental Health Officers, Messrs Leslie Dean and Douglas Caldwell to prepare a report to assess the noise levels generated by barking dogs at the respondent's property, and to determine the maximum number of dogs that could be kept at the site without causing alarm and distress to "neighbouring occupiers". There being no recognised or approved method of making such an assessment and determination, Messrs Dean and Caldwell devised their own predictive model. Their model is based on British Standard method for rating industrial noise affecting mixed residential and industrial areas (BS4142; 1997, fourth inventory of productions for the respondent, item 1).

(27) The forward to BS4142; 1997 states:

"The British Standard describes a method of determining the level of noise of an industrial nature, together with procedures for assessing whether the noise in question is likely to give rise to complaints from persons living in the vicinity".

 

 

It goes on to state:

 

"Although in general there will be a relationship between the incidence of complaints and the level of general community annoyance, quantitive assessment of the latter is beyond the scope of this standard, as is the assessment of nuisance."

 

The scope of BS4142; 1997 specifically states:

 

"The method is not suitable when the background and rating noise levels are both very low.

 

Note: for the purposes of this standard background noise levels below about 30 dB and rating levels below about 35 dB are considered to be very low."

 

(28) Messrs Dean and Caldwell's model is based on a hypothetical "face on" or more or less stationary dog which barks at a noise level of 99 dB at a distance of about one metre. Their predictions are based upon, inter alia, noise measurements taken from Woodhead Farm, which is outwith Moray and within Aberdeenshire. Their joint report has undergone a number of revisals and amendments. In its final form, dated 28 October 2011, it opines that the night time noise level from more than four dogs "would be likely to cause complaint" (from neighbouring properties) (12th inventory of productions for the applicants).

(29) Mr Tim Waters Fuller, Acoustic Consultant with RMP prepared reports dated 24 March 2010 and 31 August 2010 (second inventory of productions for the respondent, item 1 and third inventory of productions for respondent, item 1 respectively) commenting upon Messrs Dean and Caldwell's report one and two (fifth inventory of productions for respondent, items 1 and 2).

(30) Mr Waters Fuller prepared a noise impact assessment and technical report dated 17 September 2010 (third inventory of productions for respondent, item 2). In preparing his assessment and report, Mr Waters Fuller had regard to the 1999 World Health Organisation document "Guidelines for Community Noise (WHO 99)". WHO 1999, in a residential context, is concerned with interference with sleep and annoyance. It provides:

"If negative effects on sleep are to be avoided the equivalent sound pressure level should not exceed 30 dBA indoors for continuous noise. If the noise is not continuous, sleep disturbance correlates best with L_A max and effects have been seen observed at 45 dB or less. This is particularly true if the background level is low. Noise events exceeding 45 dBA should therefore be limited if possible. For sensitive people an even lower limit would be preferred."

 

In recognition of the intermittent nature of dog barking and of individual sensitivity, Mr Waters Fuller applied a rating or correction level of 5 dB, thereby reducing night time tolerance to 40 dB. This is in line with BS4142: 1997 rating level advice "apply 5 dB correction if...the noise contains distinct impulses (bangs, clicks, clatters or thumps)". Similarly, in recognition of the WHO 1999 advice that serious daytime annoyance would be likely at levels over 55 dB, Mr Waters Fuller applied a rating level of 5 dB, thereby reducing tolerance to 50 dB.

(31) Neither BS4142: 1997 nor WHO 1999 provides guidance and advice regarding noise levels above which "alarm and distress" could be expected.

(32) The methodology and equipment used by Mr Waters Fuller in the preparation of his assessment and report dated 17 September 2010 is scientifically and technically sound. The noise measurements taken by Mr Waters Fuller throughout the period 1 to 2 September 2010 are accurate.

(33) The background noise level at Core of Mayen is very low, 25 dB or less (table 5.3 of Mr Waters Fuller's report).

(34) The background noise level at Woodhead Farm is 33 dB (12th inventory of productions for applicants, item 1, page 4).

(35) Table 7.2 of Mr Waters Fuller's assessment and report indicates that during the day and evening in the outdoor living areas of Core of Mayen, predicted dog bark level is 22.2 dB; outside bedrooms at night predicted dog bark level is 22.2 dB and inside bedrooms at night predicted dog bark level is 23.9 dB. These figures are based on a five minute night time and one hour day time period of continuous barking noise by one or two individual dogs. In simple terms, these figures indicate that any disturbance at Core of Mayen should fall far below the "annoyance" level of 40 dB advised by WHO 1999 as adjusted. In recognition of the fact that these figures, although computed from actual measures and recordings taken, might not represent "the worse case scenario", Mr Waters Fuller undertook a further assessment which indicated that 20 to 40 dogs barking continuously over a five minute night time period would produce a response of "difficult to accept", as defined by Koston and Van Os 1963 ("Community Reaction Criteria for External Noises").

(36) Throughout the period between Noon on 21 October 2011 and 1.30 pm on 22 October 2011, Mr Waters Fuller carried out a further noise monitoring exercise on behalf of the respondent. The purpose was to "determine the levels of typical and peak noise omissions from the dogs at Woodhead Caravan at a remote location". Three "peak" dog barking events were staged, two on 21 October between 1310 and 1400 and witnessed by Police Sergeant Adrian Moar, and one on 22 October 1300 witnessed by Police Constable Bill Anderson (seventh inventory of productions for respondent, item 3). Mr Waters Fuller and Police Sergeant Moar endeavoured to count the number of dogs involved in the "peak" tests carried out on 21 October. Their respective estimates were about 30 dogs. They were satisfied that all the dogs present at the site were on open display.

(37) The staged "peak" dog barking events were conducted with the full co-operation of the respondent. The events involved all the dogs being encouraged into an excitable state by the respondent and his use of a particular ball with which the dogs are familiar. Territorial barking, directed towards the witnesses, was also encouraged. A "hierarchy" amongst the pack was observed and noted by the witnesses. So, too, was the pre-eminence of the respondent as leader of the pack. Throughout the events, no more than 10 dogs barked any one time. Bark events were typically of short duration, between 2 to 10 seconds.

(38) The methodology and equipment used by Mr Waters Fuller over the 24 hour period between 21 and 22 October 2011 to record dog barking events throughout that period is scientifically and technically sound.

(39) Noise levels from "peak" barking events were typically below 45 dB L_AEQ (L_AF max 55 dB) at a location 300 metres west of the Woodhead Compound. Noise levels from "peak" barking events at Core of Mayen are reasonably expected to be below 36 dB L_AEQ (L_AF max 46 dB).

(40) No dog barking events were detected in the night time recordings.

(41) At night, the respondent sleeps in one of the caravans within Woodhead Compound with his entire pack of dogs other than two which "guard" the Compound. The guard dogs occasionally bark territorially at a passing game bird, deer or small animal.

(42) In pursuance of his instructions from the applicants, Mr Dean made a sound recoding on 9 December 2008 at the same time as he took measurements. The resulting CD was played in court on several occasions. It is not an accurate reproduction or representation of the actual noise that would have been detected by the human ear at the time in respect that "auto gain" amplifies and compresses the original recording.

 

FINDS IN FACT AND IN LAW:

(1) That the respondent has not acted in a manner that causes or is likely to cause alarm or distress.

(2) That the respondent has not pursued a course of conduct that causes or is likely to cause alarm or distress.

(3) That the keeping by the respondent of a pack of German Shepherd dogs (presently 46 in number) at Woodhead Compound is reasonable.

FINDS IN LAW:

(1) That Mr David Duncan and Mrs Morag Duncan are relevant persons as defined under and in terms of the Anti Social Behaviour etc (Scotland) Act 2004), section 4(13)(a).

(2) That Mrs Gaye Morrison is not a relevant person under and in terms of the Anti Social Behaviour etc (Scotland) Act 2004, section 4(13)(a).

(3) That the respondent has not engaged in anti social behaviour towards Mr David Duncan and Mrs Morag Duncan.

THEREFORE, Dismisses the application; Appoints parties to be heard on the question of expenses on a date to be hereafter assigned.

 

 

NOTE:

Witnesses for the applicants

[1] First witness, Mrs Morag Duncan. In this case I heard evidence, first, from Mrs Morag Duncan, (66 years of age), who has lived at Core of Mayen with her husband David since 1998. Mrs Duncan is a retired teacher. Mrs Duncan spoke of the "tremendous noise" of the respondent's arrival at Woodhead Compound. Initially, she and her husband thought that it came from a van load of turkeys. They soon realised that it was a pack of German Shepherd dogs. Mrs Duncan said that the dogs were extremely noisy and sounded distressed. She and her husband called the SSPCA on account of their concern for the welfare of the dogs and were subsequently assured that within the Compound there was a kennel block. Mrs Duncan spoke of being "upset that the dogs were living in such an unkind environment". Mrs Duncan spoke about contacting the ASBO helpline, Environmental Health, the Planning Authorities, the police - "everyone we could think of" due to their concern about the noise of the dogs and safety issues. Mrs Duncan spoke to keeping noise diaries on the advice of Mr Jamieson, ASBO Officer for the applicants. She was taken through numerous entries, particularly entries recording incidents of being woken from sleep by the noise of the dogs. She spoke about the noise of the dogs being "disturbing", "distressing", "disruptive", "exhausting", and "depressing". She said that the noise was not regular, but "erratic" and "intermittent". She said that some days were "dominated by the barking" and that it was impossible to focus on, for example, gardening or reading. Mrs Duncan said that her grandchildren, who used to live nearby at Hazelwood, were scared of the dogs and that visitors were disturbed by their noise. She said that the noise was very difficult to live with and that she lived in the constant expectation of the noise starting up again.

[2] In cross-examination, Mrs Duncan confirmed that the barking was mainly during the day; that she has never met the respondent or spoken to him; and that there were several meetings organised by the applicants at the request of local residents. She confirmed that representatives of the applicants had visited Core of Mayen "to record a background of noise as a yardstick", and that she understood that a sound recording had also been made at the Woodhead Compound.

[3] Second witness, Mr David Duncan. Mr David Duncan, (68 years of age) gave evidence. Mr Duncan is a retired teacher. He spoke to being local to Rothiemay for the last 30 years. He described Core of Mayen as providing the opportunity to him and his wife to pursue their interests in bird watching, wild life and gardening. Mr Duncan similarly described the arrival of the dogs as "a tremendous din - it felt like a field of turkeys". He said that he and his wife soon realised that it was a pack of dogs - "a dreadful hubbub of barking and yapping". He confirmed that he and his wife had contacted SSPCA because of concerns about the dogs' welfare. Mr Duncan described feeling "enervated to find that (Core of Mayen) was no longer a tranquil place". He confirmed that he and his wife had contacted various agencies about their concerns. Mr Duncan was taken through numerous entries he made in the noise diaries. He described the noise of the dogs as "soul destroying" and as causing irritability and exhaustion. He described the howling of the dogs as being particularly distressing. "The howling represents enormous frustration and pent up energy of these large animals being confined...it's related to their desire to get the pack together to hunt". Mr Duncan spoke of his grandchildren being reluctant to play in the garden at Hazelwood, and of guests at Core of Mayen being uneasy. Mr Duncan spoke of feeling quite frightened by the dogs being so close, especially when they were being exercised outwith the Compound. He expressed concerns that in high winds the Compound fence might be breached and allow the dogs to escape.

[4] In cross-examination, Mr Duncan confirmed that he has never spoken to the respondent. He explained that he "would not have felt safe going down to (Woodhead Compound)". He spoke about avoiding taking walks in the vicinity of the Compound.

[5] In re-examination, Mr Duncan said "no dogs would be wonderful, we could start feeling safe again" and "it would be a major improvement if the number of dogs was limited".

[6] Third witness - Mrs Gaye Morrison. Mrs Gaye Morrison, (57 years of age). Mrs Morrison and her husband moved to Woodhead Farm in 2007. She said that they became aware of the noise of the dogs within a few weeks. Initially, they had thought they would get used to the noise, but it became "intolerable". Mrs Morrison spoke of having been advised by the applicants not to approach the respondent and to start keeping noise diaries. Mrs Morrison described the noise as sometimes being "frantic". She spoke of feeling drained, irritable, tired, tearful and worn out by the noise. She spoke of suffering headaches and a feeling annoyance. She described how the noise interfered with gardening and with having "quality time" at home. She said that she and her husband had thought about selling their property but they were concerned that they would lose a lot of money because of the noise level. She confirmed that Environmental Health Officers had taken noise measurements at her property.

[7] In cross-examination, Mrs Morrison described the noise from the dogs as "howling, whining, animals in distress, different pitches and sounds". She described the rural noise as "tractors, baying animals, sheep, birds, farm implements". She agreed that the countryside is not a silent place, but stressed that the noise of the dogs is louder than the general background noise. Mrs Morrison agreed that she had spoken to the respondent on one occasion about a telephone line and that he had been civil and reasonable. She confirmed that she had made an entry in her noise diaries on 20 February 2011 which stated "I would want to do something, but I know that he (the respondent) would not welcome any reasonable request".

[8] In re-examination, Mrs Morrison said that she and her husband had involved the police and Mr Jamieson as "intermediaries due to the effect of his (the respondent's) lifestyle on us. We would be amenable to compromise."

[9] Fourth witness - Mr Andy Jamieson. Mr Andy Jamieson, (55 years of age). Mr Jamieson is ASBO Coordinator with the applicants. He has been in his post for seven years. Previously, he was a Sergeant in Grampian Police Force. Mr Jamieson explained that his role is to deal with all reported incidents and complaints regarding anti social behaviour with reference to the appropriate legislation and to Scottish Government Guidance. He said that the initial complaint from the Duncans was made in August 2006 and was followed later by a complaint from Mrs and Mrs Morrison. Mr Jamieson described having visited Woodhead Compound on four occasions, Core of Mayen on six occasions and Woodhead Farm on two occasions between August 2006 and spring 2008. He said that he had been unable to gain access to Woodhead Compound, but had been able to see 10 to 20 German Shepherd dogs running freely within the Compound area behind a six foot high fence. He said that on two of his visits to Core of Mayen he had heard dogs barking while in the garden ground. On neither visit to Woodhead Farm did he hear barking. Mr Jamieson described how he had liaised with various agencies in pursuance of Mr and Mrs Duncan's complaint, including the Sheriff Clerk at Inverness who provided him with details about the respondent's move from Ardersier in August 2006 in consequence of a court order. Mr Jamieson said that multi-agency meetings were held with local residents to see if there were "any infringements" and to exchange views. He said that mediation had been considered, but discounted because none of his four visits to Woodhead Compound had met with a response from the respondent, and further, "I don't think he would have accepted mediation either". Mr Jamieson said that he met with his Aberdeenshire equivalent to decide whether an ASBO should be applied for in Moray or in Moray and Aberdeenshire. He said that the application for an ASBO was supported by Grampian police and that Moray Council Legal Services Department had progressed the application. Mr Jamieson said that prior to the application being lodged, letters had been sent to the respondent and he (Mr Jamieson) had endeavoured to have face to face dialogue with the respondent. Mr Jamieson described how Mr and Mrs Duncan and Mrs Morrison appeared to be increasingly agitated, distressed and frustrated as time went on. Mrs Morrison had put plans to start a pony trekking business on hold because she realised that pony trekkers and the horses would be disturbed by the noise. He described the effect of the noise upon Mr and Mrs Duncan and Mrs Morrison as:

"A dripping tap syndrome, They are to be commended in their dedication to keeping the diaries to build the picture of what things they're having to endure. At the beginning, there was a degree of tolerance and understanding. It's dropped away altogether. They are losing patience and tolerance".

 

[10] In cross-examination, Mr Jamieson said that mediation was no longer an option because funding had been withdrawn. He reiterated that he had paid visits to Woodhead Compound and had written to the respondent in an attempt to resolve matters. He agreed that multi-agency meetings had discussed dog welfare concerns and planning implications. He agreed that SSPCA had no welfare concerns in relation to the dogs and that planning issues had been appropriately dealt with by the respondent. Mr Jamieson confirmed that regard had been had to the Scottish Government Guidance on noise nuisance under the Anti Social Behaviour etc (Scotland) Act 2004 (fourth inventory of productions for the respondent, item 2). He confirmed that procedure under the Civic Government (Scotland) Act 1982, section 49 had been decided against. He said that noise monitoring with a view to procedure under section 54 of the Act was not cost effective to implement. He said that procedure under Environmental Health legislation had been considered and discounted. Mr Jamieson said that, eventually, he wrote to the respondent in February 2008 and that "on reflection I perhaps should have written before". Mr Jamieson denied that the respondent's previous history at Ardersier and anecdotal stories about him had affected the decision making process. Mr Jamieson denied that the formal application was made because the respondent was not wanted in Moray. Mr Jamieson denied that somewhat precipitate formal steps were taken with a view to "end the problem as quickly as possible". When asked about the reasoning behind the original application seeking a reduction to two dogs, Mr Jamieson explained that "No science was involved. We felt after a round table discussion that a reduction to two dogs wouldn't have the same harmful effect on the neighbours".

[11] In re-examination, Mr Jamieson said that the complainers were "very very reluctant" to engage in mediation and that the respondent "didn't want to engage with Moray Council at all". He explained that multi-agencies had been involved in discussion "because it was evident that there could be a number of issues around (the respondent) and his Compound. It was better to deal with all issues, which (eventually) came down to noise".

[12] Fifth witness - Sergent Adrian Moar. Sergeant Moar, (35 years of age) has been a serving police officer for 14 years. At about 12.30 pm, on 21 October 2001, Sergeant Moar attended at Woodhead Compound to witness the carrying out of "peak tests" by Mr Tim Waters Fuller in the company of the respondent. Upon arrival, all the dogs were contained in the kennel area. Sergeant Moar said that the respondent deliberately called out to the dogs, and that the only reaction from them was "a small amount of barking and jostling to get a look at me - a stranger". Sergeant Moar said that the respondent was able to quieten the dogs and that he "showed command". Sergeant Moar explained that two peak tests were carried out, one in the kennel area, the other in the Compound area where the dogs could roam free. He said that the respondent used a favourite toy, a ball, to "instigate excitement" among the dogs. The first test lasted about five minutes. At the end of the test, the respondent put away the ball and quietened the dogs by verbal command. For the second test, the respondent released the dogs and, by using the same ball, excited the dogs by throwing the ball. Sergeant Moar described how the dogs circled round the respondent, who, with the ball, was the focus of their attention. He described general chasing and barking. He estimated that there were about 30 dogs in all. He described how they watched the respondent throughout the test, which lasted about 10 minutes, and how the respondent was able to quieten individual dogs by referring to them by their name. He estimated that up to 10 dogs barked at any one time. Sergeant Moar, who owns a German Shepherd dog, estimated that the majority of the dogs were about seven years of age.

[13] In cross-examination, Sergeant Moar said that he had been at the site for a period of about two hours. He said that he had some difficulty in finding the site because of its "very rural" location. Sergeant Moar described his visit as an "interesting experience". He explained that he had some knowledge of canine behaviour having worked alongside police dogs. He said that it was apparent that there was a "pack order" with some dogs having superiority over others. He formed the impression that the pack was very obedient to the respondent's commands. He confirmed that the use of the ball generated a "loud commotion". He confirmed that he was satisfied that he saw all the dogs that were on site, and that the respondent had co-operated fully in displaying them.

[14] In re-examination, Sergeant Moar confirmed that the respondent appeared to be "pack leader".

[15] Sixth Witness - Mr Leslie Dean. Mr Dean (58 years of age) is an Environmental Health Officer with Aberdeenshire Council. He said that in pursuance of a decision by Aberdeenshire Council and Moray Council to make a joint application for an ASBO he and his colleague Mr Douglas Caldwell were commissioned to "attempt to quantify an appropriate number of dogs". He and Mr Caldwell decided that to do so they needed to construction a prediction model. Mr Dean described dog barking as being an unusual noise to measure in respect that it is intermittent, impulsive, can be irritating and liable to generate "human" response in accordance with individual sensitivity. Mr Dean explained that there is no universally accepted standard of measuring the impact of dog barking. He described how he and Mr Caldwell had selected BS4142: 1997 as the appropriate method upon which to base their predictive model because they considered it "had all the factors you'd want to include in the assessment". He explained that he and Mr Caldwell had considered and discounted the use of WHO 1999 Guidelines because the document dealt with absolute levels and it did not take into account the existing or background noise environment and the character of the noise complained off. They considered that while Koston and Van Os had some merit and some characteristic similar to BS4142: 1997, it was not, in their view, as appropriate as BS4142: 1997. Mr Dean explained in detail how their predictive model was constructed with reference to the measured background noise of the rural setting at Woodhead Farm (33 dB) and how it was adapted to take into account a rating level, or special character. He also explained how noise levels during the night were usually much more concerning and intrusive than daytime noise, and that this was factored into their model. Mr Dean explained that what they were trying to determine was the "cut off criteria", or the level at which complaints were likely to occur. He further explained that the model was specific to Woodhead Farm in respect that "it was the worse affected property". The conclusion they reached was that more than four dogs barking at night would be likely to lead to complaints. The daytime figure was more than nine dogs.

[16] In cross-examination, Mr Dean explained that the application seeking to restrict the number of dogs kept to no more than two was lodged prior to his (and Mr Caldwell's) involvement. Mr Dean confirmed that on two occasions a monitoring exercise was carried out at Core of Mayen. He also confirmed that the joint report had been revised several times to take into account "a better method" of making various calculations and to rectify errors. Mr Dean agreed that BS4142: 1997 was to do with industrial noise and that Woodhead was clearly not in an industrial environment, nor was it industrial premises. Mr Dean maintained that BS4142: 1997 was a valid guide to use in locations other than industrial. He agreed that "alarm" and "distress" were not referred to in BS4142: 1997. Mr Dean agreed that were it not for the barn building at Woodhead Farm, which forms a barrier between the farmhouse and the Compound, use of Messrs Dean and Caldwell's predictive model would result in a "zero dog" figure (ie. no tolerance of any dog barking at all).

[17] The use of a 99 dB figure as the output from a single stationary dog bark episode at a distance of about one metre was explored in depth. Mr Dean explained that "We tried to come up with something we could reference back to". Mr Dean agreed that the Messrs Dean and Caldwell original calculation was wrong in respect that the measurement used related to an impulse event rather than a median event. Mr Dean insisted that the 99 dB figure was appropriate notwithstanding that the corrected calculations disclosed average levels of 94.4 and 97 dB. Mr Dean described the Chartered Institute of Environmental Health suggested figure of 95 dB as "a very imprecise" calculation, whereas the Messrs Dean and Caldwell measurements were detailed and showed higher actual measured levels than those predicted by the 99 dB level. Mr Dean attached considerable weight to the "Crawford document", a paper produced in the context of a planning application.

[18] Mr Dean was asked about the recording made on 9 December 2008 and specifically whether the recording equipment used was set on "auto gain". Mr Dean was not familiar with this expression. Mr Dean was asked about the merits of using WHO 1999 Guidelines rather than BS4142: 1997. Mr Dean explained that because the WHO 1999 Guidelines do not recognise special character, the locality and intermittency, one needed to be careful in their use. Mr Dean agreed that WHO 1999 Guidelines refer to "annoyance", and that "annoyance" would cover a whole range of responses and perceptions.

[19] Seventh Witness - Mr Douglas Caldwell. Mr Douglas Caldwell, Environmental Health Officer with Moray Council. Mr Caldwell became involved in this case in December 2008. He understood his (and Mr Dean's) remit to be to set a minimum number of acceptable dogs at the Compound based upon a noise propagation model. Mr Caldwell explained that the BS4142:1997 method had been chosen because it reflected the locality and particular sensitivities of an area whereas WHO 1999 Guidelines relied on absolutes. Mr Caldwell said that there is no acoustic definition of "alarm and distress". He described alarm and distress as anxiety, annoyance, fear associated with barking - "non-acoustic factors". Mr Caldwell explained that his input to the joint report was mainly narrative in respect that Mr Dean took the measures at Woodhead Farm. Mr Caldwell was, however, involved in taking the measurements of a single stationary dog bark episode at Seafield Park, Keith. He described the dog in question as a three year old German Shepherd. He explained that the 99 decibel figure assumed that the "hypothetical" dog would be barking directly at the noise receiver.

[20] In cross-examination, Mr Caldwell confirmed that he took no issue with Mr Tim Waters Fuller measurements, tabulations and scientific approach. He recognized Mr Waters Fuller professionalism. The real dispute between them was whether BS4142: 1997 was an appropriate method to use in creating a predictive model.

[21] Eighth Witness - the respondent. Mr Debidin is 58 years of age. He bought the 5.46 acre site in 2006 and set about creating appropriate facilities for his pack of dogs. He explained that he got his first German Shepherd dog in March 1981. It was a show dog and the pick of the litter. At that time, Mr Debidin had been in a successful hairdressing partnership for some years. The partnership came to an end in about 1981 and Mr Debidin bought his own salon. He sold his business in 1989. Between 1983 and 1989, he had bred and showed a number of top quality German Shepherd dogs, winning a champion title in 1988. In 1989, he decided to devote his time to preserving the bloodline of his then stock of German Shepherd dogs. He became a prominent figure within the German Shepherd dog fraternity. In 1996, he moved to Ardersier with his dogs. He obtained a licence for boarding kennels for 24 dogs and 12 cats. His neighbour at that time ran a piggery. In about 1998/1999 the neighbour decided that the piggery was not cost effective and he applied successfully for planning permission to build five "posh" houses on his property. This changed the character of the environment in which Mr Debidin had been keeping his dogs. Complaints were made and eventually Mr Debidin had to remove himself and his dogs after a criminal prosecution. He had hoped to relocate to a 38 acre site at Star Head, Craigellachie, but a dispute in relation to servitude rights of access frustrated the completion of the purchase. Accordingly, he looked for an alternative site and eventually bought Woodhead Compound "as the second best choice for me and my dogs". He described the site as being "in the middle of nowhere" and an "ideal spot" for him and his dogs, it being "isolated and private". He said that the dogs "took the move (to Woodhead Compound) in their stride". Not so the local community, who Mr Debidin described as "close knit: they don't want change". He described his lifestyle as being "too much for them (the community) to take in their lifestyle". Mr Debidin described feeling "spied upon" by the local community. He went on to describe his dogs as "a family pack or group" and "something more than something special: it is unique". He explained that he did not breed German Shepherd dogs for commercial purposes, but, instead, to learn about and understand the psychology and behaviour of a large family pack. He described how the dogs talked to each other, communicate and express themselves. He accepted that they do bark, but not out of distress or hunger or anxiety or because of being bullied. He described them as happy dogs with individual names and personalities and with a distinct and recognized pack order. Mr Debidin said that at night time all but two dogs share a caravan with him. The two remaining dogs were free to roam the Compound or to retire to the kennel area. Sometimes, they would bark if they were disturbed by a deer, or fox, or badger or pheasant. Mr Debidin confirmed that he had been more than willing to co-operate in the "peak" tests carried out by Mr Waters Fuller and witnessed by Sergeant Moar. The results were entirely consistent with his own general observations of no more than 10 dogs barking at any one time. He said that there was "no way" that those 10 dogs would be facing in one single direction during a bark episode. Mr Debidin attributed complaints about his dogs to small mindedness. He described the complaints as being "exaggerated" and "untruthful". He explained that he considers his lifestyle to be the opposite of anti-social. He said that he regards the application for an ASBO as "absurd and insulting".

[22] In cross-examination, Mr Debidin confirmed that he had spent significant sums of money on the frustrated purchase of Star Head and on the purchase and fitting out of Woodhead Compound. He confirmed that he moved his dogs from Ardersier in order to prevent their destruction. Mr Debidin accepted that he had received a warning letter from Moray Council, and explained that he "didn't think it would come to this. You don't expect court proceedings". Mr Debidin said that he would be willing to engage in mediation or to discuss enhanced sound insulation to try to reach accommodation with Moray Council and his neighbours, "I'm open to anything to avoid losing my dogs". He maintained, however, that there was not a real, but, instead, a perceived barking problem "It doesn't exist. It doesn't happen. I just would not want it". Mr Debidin was insistent that he is in control of his dogs not just for short periods, but all the time. "The whole point in having my dogs is to have them with me. I don't like them outside at night. They're in with me". It was put to Mr Debidin that only 30 dogs were present during the "peak" tests rather than the (then) entire pack of 47. Mr Debidin denied this saying, "I was not going to jeopardize my integrity. There was no reason to be evasive or deceitful. I didn't mind the 47 being counted". On the keeping of dog noise diaries by Mr and Mrs Duncan and Mrs Morrison, Mr Debidin remarked that this had become an "an obsession", and that the entries were lies and exaggerations, and inconsistent with the findings or Mr Waters Fuller. Of the conditions in which his dogs are kept, Mr Debidin explained that he has a licence to obtain offal and bones from Elgin Abattoir. He had a dog kitchen on site which was DEFRA compliant. He had a veterinary surgeon in Keith, but generally his dogs enjoyed good health. Of the application, Mr Debidin said he regarded it as "a hidden agenda" to move him on. He said that he had respect for his neighbours and that he would be sympathetic if their privacy was being invaded by dog noise. "I accept that would be intolerable". Mr Debidin described feeling victimised and picked on simply because of his unusual personal lifestyle.

[23] Ninth witness - Mr Tim Waters Fuller. Mr Waters Fuller (39 years of age) is an acoustic consultant with RMP, which is a consulting division of Edinburgh Napier University. Between 1 and 2 September 2010, Mr Waters Fuller took noise level measurements at three locations - the Woodhead Compound, Hazelwood and Core of Mayen. The accuracy of his measurements is not in dispute.

[24] Mr Waters Fuller confirmed that "alarm" and "distress" are not common descriptors used in acoustic literature. He opined that a distressing acoustic stimulus would exceed the noise level associated with annoyance. Mr Waters Fuller used the WHO 1999 document in "Guidelines for community noise" as his baseline in determining whether disturbed sleep (ie. unacceptable interference with enjoyment of life), particularly at Core of Mayen, could be expected from the noise emanating from the Woodhead Compound. Mr Waters Fuller recognized that WHO 1999 advice is in relation to a continuous source of noise, whereas dog barking is an intermittent source of noise. Accordingly, he suggested that a 5dB adjustment or penalty should be factored into the measurements, thereby reducing night time tolerance to 40 dB. He similarly used WHO 1999 Guidelines as a base for determining whether serious daytime annoyance could be expected from the noise emanating from the Compound. The Guidance suggests that such annoyance would be likely at levels over 55 dB. Again, Mr Waters Fuller suggested an adjustment or penalty of 5 dB, thereby reducing the tolerance level to 50 dB. According to Mr Waters Fuller's measurements and calculations, background noise level at Core of Mayen is very low - in the region of 25 dB. According to Mr Waters Fuller's measurements and calculations, predicted noise level at Core of Mayen during a 10 dog barking event is 30 dB. Mr Waters Fuller did not disagree with Messrs Dean and Caldwell's measurements of the background noise level at Woodhead Farm as between 31.2 and 34 dB. Mr Waters Fuller predicted noise level, at a distance of some 230 metres from Woodhead Compound, during a 10 dog barking event at 45 dB. Mr Waters Fuller put 45 dB in context by explaining that it is the equivalent of the noise level produced by softly spoken voices at a distance of 2 metres.

[25] Mr Waters Fuller took issue with Messrs Dean and Caldwell's use of BS4142: 1997. He described BS4142: 1997 as being "widely used and abused as a standard". He explained that it was not apt for a non-industrial noise (dog barking), nor for use in a location which was not industrial/mixed residential. He further explained that it was not apt for an area with a low background noise level because, invariably, it would over estimate. His preference was for the use of WHO 1999 Guidelines which he described as "an analysis from all sorts of sources" and of "international significance". Mr Waters Fuller was critical of Messrs Dean and Caldwell's use of a 99 dB figure for a hypothetical barking dog. He favoured a figure of 95 dB which was consistent with both the Chartered Institute of Environmental Health suggested figure and Messrs Dean and Caldwell's own measurements averaged out. He attached little weight to "the Crawford document".

[26] In cross-examination, Mr Waters Fuller agreed that there are non-acoustic aspects of dog barking associated with aggression and fear. He disagreed that BS4142: 1997 (as adapted to incorporate a 5 dB penalty or correction) was an appropriate model to use to predict the impact of dog barking events in a very quiet environment. When it was put to Mr Waters Fuller that Mr and Mrs Duncan and Mrs Morrison had described frequent disturbances - some sufficient to awaken them, Mr Waters Fuller responded that on his findings, "It shouldn't be happening". In relation to Messrs Dean and Caldwell's use of a 99 dB measurement for a hypothetical dog, Mr Waters Fuller maintained that 95 dB is a figure in the public domain and which is periodically reviewed.

[27] As regards the comparative impact of dog barking between Core of Mayen and Woodhead Farm, Mr Waters Fuller said that the actual source levels (from Woodhead Compound, which he measured) would remain the same, but he would expect a lesser impact upon Core of Mayen, it being further away from the source level and factoring in noise attenuation. When asked about the effect of the dogs sleeping in a caravan, Mr Waters Fuller said that he would expect attenuation rather than amplification. He stressed that he actually measured the noise over a specific period, rather than use a model to predict the noise. Mr Waters Fuller confirmed that some discussion had taken place with the respondent about measures to improve sound insulation, but not to the extent of discussion likely cost of such measures. He opined that such measures would only benefit Woodhead Farm since, on his findings, there ought not to be any noise problem at Core of Mayen.

[28] Tenth witness - Ian Platt. The final witness to give evidence was Mr Ian Platt. Mr Platt is 41 years of age and is a handyman. He has known the respondent for about 25 years. Mr Platt said that he gave some assistance to the respondent at his property at Ardersier and he carried out propriety work at Star Head. He said that he visited Woodhead Compound with the respondent about a month or so before the Ardersier "deadline", and carried out works including leveling of the ground, providing road access, securing a water connection, building a dog kitchen, providing toilet facilities - "the whole shebang really". Mr Platt explained that he lived in a caravan on site and that he got on with the construction works while the respondent looked after his dogs (in Ardersier). Mr Platt said that on 23 August 2006, he was the "delivery driver", using a 71/2 tonne lorry. By then, the Compound was ready for the dogs. Mr Platt said that the dogs "were fine". He stayed on for a couple of weeks to do further work in and around the Compound. Since then, he had been back four or five times, with the longest stay being about three months. Mr Platt said that the respondent would normally rise at about 7 or 8 am, let the dogs out, play with them and feed them. He would normally retire for the night at 9.00 pm. The dogs would sleep with him in a caravan, apart from a couple which would be left to "wander about the premises". If they were disturbed by a wild animal they might bark, but for no more than a couple of minutes. Mr Platt said that the dogs "get on brilliant" and that there are no fights amongst them - "now his breading is so good you can leave the whole lot no problem". Mr Platt said that "I'm not going to say that they are silent". He described how the dogs would make a bit of noise when they are being fed, or when they were playing, or when someone banged on the Compound door, but other than that there were periods of quiet for "hours and hours". Generally, he said, there's a reason for the noise - "they don't bark for the sake of barking". Mr Platt said that he had never experienced sustained loud barking episodes - "I would say to him (the respondent) to sort it out. It just wouldn't happen. He wouldn't put up with them barking endlessly". Mr Platt said that when he spent three months living on the compound he was there with his girlfriend and two year old daughter. During that period, they were untroubled by the dogs.

[29] In cross-examination, Mr Platt agreed that he and the respondent went back a long way. He confirmed that the preparitory work at Star Head and the work done at Woodhead Compound must have cost the respondent many thousands of pounds. Mr Platt confirmed that dogs arrived at Woodhead Compound at about 5.00 am or 6.00 am on 23 August 2006. When asked to comment upon the evidence that their arrival sounded like a truck load of turkeys, Mr Platt said, "They would have been excited". Generally, Mr Platt said, the dogs are quiet - "The dogs have no reason to bark continuously". Mr Platt said "The dogs don't all bark at one go", and that, at night, "everyone goes to away into the caravan apart from two. These dogs (the pack) are not dogs to (the respondent), they are his family". He went on to say that the respondent can controlled the dogs "at any time, they listen to him". He went on to say that the respondent "doesn't allow the dogs to carry on. It would drive him crazy and me crazy". Mr Platt said he thought the complaints made against the respondent had been fabricated - "The only problem is that people don't like Mr Debidin and the dogs and they want him gone".

 

Submissions

[30] I am grateful to Mr Cobb, Advocate and Mr Dickson, Solicitor for their full and careful submissions, which are appended hereto. I am also grateful to them for having attended the site visit.

 

The application

[31] The application is made under and in terms of section 4 of the Anti-Social Behaviour etc (Scotland) Act 2004. It was lodged on 28 August 2008. Section 4 provides as follows:-

1 On the application of a relevant authority, the sheriff may, if satisfied that the conditions mentioned in subsection (2) are met as respects the person to whom the application relates (the "specified person"), make an anti-social behaviour order.

2 Those conditions are:

(a) that the specified person is at least 12 years of age

(b) that the specified person has engaged in anti-social behaviour towards a relevant person; and

(c) that an anti-social behaviour order is necessary for the purpose of protecting relevant persons from further anti-social behaviour by the specified person.

3 For the purpose of determining whether the condition mentioned in subsection (2)(b) is met, the sheriff shall disregard any act or conduct of the specified person which that person shows was reasonable in the circumstances.

4 (Not relevant)

5 Subject to subsection (6) and (7), an anti-social behaviour order is an order that prohibits, indefinitely or over such period as may be specified in the order, the specified person from doing anything described in the order.

6 The prohibitions that may be imposed by an anti-social behaviour order are those necessary for the purpose of protecting relevant persons from further anti-social behaviour by the specified person.

7 If an anti-social behaviour order is made on the application of the local authority the order may, in addition to imposing prohibitions that are necessary for the purpose mentioned in subsection (6), impose such prohibitions as are necessary for the purpose of protecting other persons ("affected persons") from further anti-social behaviour by the specified person.

8 (Not relevant)

9 (Not relevant)

10 An application for an anti-social behaviour order shall be made by summary application to the sheriff within whose Sheriffdom the specified person is alleged to have engaged in anti-social behaviour.

11 Before making an application under this section (a) a relevant authority shall consult the relevant consultees and (b) (not relevant).

12 Nothing in this section shall prevent a relevant authority from instituting any legal proceedings otherwise and under this section against any person in relation to any anti-social behaviour.

13 In this section, "relevant person" means (a) in relation to an application by a local authority, a person within the area of the local authority and (b) (not relevant).

[32] Moray Council is a relevant authority for the purposes of the application. Mr and Mrs Duncan fall within the definition of relevant persons. Mr and Mrs Morrison do not fall within the definition since they are resident in Aberdeenshire. Their position as potentially "affected persons" can be considered by me only if and when I am satisfied that the respondent has (a) engaged in anti-social behaviour towards Mr and Mrs Duncan and (b) that an anti-social behaviour order is necessary for the purpose of protecting Mr and Mrs Duncan from further anti-social behaviour by the respondent. Section 143 of the 2004 Act defines anti-social behaviour as follows: (1) for the purposes of this Act (other than parts 7 and 8) a person "A" engages in anti-social behaviour if A - acts in a manner that causes or is likely to cause alarm or distress; or (b) pursues a course of conduct that causes or is likely to cause alarm or distress to at least one person who is not of the same household as A and "anti-social behaviour" shall be construed accordingly. (2) In this Act, unless the context otherwise requires - "conduct" includes speech; and a course of conduct must involve conduct on at least two occasions."

[33] For anti-social behaviour to be established there has to be some action on the part of the respondent that causes or is likely to cause alarm or distress. Furthermore, there has to be a course of conduct on his part that causes or is likely to cause alarm or distress. In the present case, the action complained of appears to be the respondent's decision to have and keep an excessive number of German Shepherd dogs within the Woodhead Compound. The course of conduct complained of appears to be wilful deafness on the part of the respondent to the noise his dogs make and its effect upon others, in particular Mr and Mrs Duncan. At the time the application was lodged, what was sought was a prohibition from "keeping more than two dogs in any premises within the Moray Council area unless those premises are at a minimum distance of 2,000 metres from any other residential property". What is now sought is a prohibition from keeping any more than four dogs at Woodhead Compound. The rationale behind the applicants seeking a prohibition from keeping more than four dogs at Woodhead Compound is that the barking noise level of up to four dogs is considered by Moray Council to be acceptable, but beyond four dogs the barking noise level is considered to cause or to be likely to cause alarm or distress to relevant persons in a remote rural location in Moray. In respect that the applicants have chosen to apply for a civil statutory remedy (an ASBO), I am bound to determine the application within the particular statutory framework. I am empowered to make an ASBO only if I am satisfied that certain conditions are met. Where I am satisfied that certain conditions are met, the making of an ASBO is not mandatory but within my discretion. The first question for my determination is whether the respondent has engaged in anti-social behaviour towards a relevant person. As I have already stated, the 2004 Act clearly defines a "relevant person" as a person within the area of the local authority. Mr and Mrs Duncan are included within this definition: Mrs Morrison is not. I find it perplexing, therefore, that Messrs Dean and Caldwell's report focuses upon Woodhead Farm rather than Core of Mayen. Woodhead Farm is outwith Moray and within Aberdeenshire. It is remarkable that the report itself was not instructed until after the application was lodged. I cannot help but wonder whether the applicants gave full and careful consideration to the implications of relying upon a statutory framework and procedure prior to lodging the application.

 

Anti-social behaviour

[34] Mr and Mrs Duncan's first awareness of the respondent was when he arrived at Woodhead Compound in the early hours of the morning with a truck load of what they thought to be noisy turkeys. They soon realized that the turkeys were, in fact, dogs. Significant, in my view, is the fact that Mr and Mrs Duncan had animal welfare concerns which were taken up and investigated by SSPCA. In their evidence, Mr and Mrs Duncan made various references to the dogs sounding distressed - for instance whining, howling and barking loudly for several hours at a time. There is no evidence to support the suggestion that the dogs' welfare is or ever has been compromised or neglected. Mr and Mrs Duncan also described episodes where the noise of the dogs preventing them from going to sleep, or woke them up during the night or first thing in the morning. They described episodes where it was impossible to concentrate on reading a book and episodes where they were prevented from enjoying being out in their garden. They described life as neighbours of the respondent as "difficult" and "exhausting". Mr and Mrs Duncan did not claim that they can hear barking at all times. Indeed, they described how the unpredictability of the next bout of disturbance was a factor in their discomfiture. Mr and Mrs Duncan have kept noise diaries since the respondent's arrival at Woodhead Compound. They were advised to do so by the applicants. Mr and Mrs Duncan have not met the respondent and they show no inclination to be introduced to him, far less visit his Compound. They described how they used to take walks nearby the respondent's property, but how they now avoid coming within close proximity to it.

[35] I have come to the view that Mr and Mrs Duncan's perception of the respondent's personality, his preferred lifestyle and his set up at Woodhead Compound has been adversely influenced by their attitude towards him and his pack of dogs. It is not difficult to see why the respondent's arrival at and occupation of Woodhead Compound with a pack of German Shepherd dogs might cause a degree of consternation. At the time of writing, there are 46 dogs in the pack. The concept of a person spending every day and night in very close proximity with a pack of 46 German Shepherd dogs is, I would suggest, difficult to process and to understand, far less accept, without actually seeing or being reliably informed about the conditions in which the dogs are kept and their interaction with the respondent. The primary reason for my request that arrangements be made for a site visit to Woodhead Compound, to Core of Mayen and to Woodhead Farm was to make sure that my determination of this application was not based upon any assumption, perception, misapprehension or misinformation about the respective loci. While the site visit is not itself evidence in the case, it has assisted me to assess the credibility and reliability of the evidence given in the case.

[36] The evidence about the conditions in which the dogs are kept and their interaction with the respondent came from the respondent, Mr Platt, Mr Waters Fuller and Sergeant Moar. I am satisfied that (a) the dogs (from an impeccable bloodline) are healthy and well cared for, (b) the respondent has an abundance of knowledge about and experience of the behaviour of German Shepherd dogs, (c) the respondent is effectively pack leader and he is in control of the dogs.

[37] The respondent has eschewed a "normal" lifestyle for a lifestyle devoted to his dogs. It was perfectly plain from his evidence (and from that of Mr Platt) that were any of his dogs to be in a state of distress, he would suffer emotional distress. Further, that were a contingent of his dogs to be unruly or agitated, or aggressive for a sustained or prolonged period, he would compromise his position as pack leader and upset the established hierarchy within the pack. Further, that were there prolonged episodes of barking at night, the respondent would have disturbed and restless nights. I am satisfied, on the scientific and objective evidence of Mr Waters Fuller, that such episodes of barking as there are during the day are by no more than 10 dogs at any one time (and usually no more than two); that the episodes are short in duration; that the episodes are consistent with a controlled pack of dogs communicating within the pack, playing within the pack, having squabbles and skirmishes within the pack; and marking and defending their territory. I am satisfied that the noise episodes emanating from the pack during the day should not cause Mr and Mrs Duncan alarm or distress. I am further satisfied that such dog barking as there is at night is very occasional, territorial and from no more than two dogs at any one time, and that it should not cause Mr and Mrs Duncan alarm or distress.

[38] At this stage I shall examine the meaning of "alarm" and "distress". "Alarm" involves fear or apprehension of danger. In the present case, there is no evidence to support the suggestion that the pack is dangerously out of control, or beyond the control of the respondent. Indeed, Sergeant Moar who witnessed two of the "peak" events, was impressed by the respondent's control of the pack. So, too, was Mr Waters Fuller. There is no sound basis for, a reason or justification for being "alarmed" by the noise emanating from Woodhead Compound, particularly at a distance of some 670 metres away from the source of the noise. "Distress" involves some form of suffering. It goes beyond upset, or annoyance, or irritation or inconvenience. I simply cannot accept that the noise emanating from Woodhead Compound is such as to cause Mr and Mrs Duncan distress. Mr Waters Fuller findings from his carefully monitored noise measuring exercises conducted on 1 and 2 September 2010 and 21 and 22 October 2011 are wholly inconsistent with Mr and Mrs Duncan's anecdotal and subjective evidence of life at Core of Mayen. It is of note that the applicants did not produce noise measurements relative to Core of Mayen. I consider Mr and Mrs Duncan's evidence to be grossly exaggerated, perhaps not deliberately so, but because they regard the respondent and his dogs as unpleasant intruders. It would appear that Mr and Mrs Duncan have an unreasonably low tolerance or an unreasonably high sensitivity to noise emanating from Woodhead Compound. Ironically, their desire to enjoy a remote and rural occasion is no different from the respondent's desire to live peaceably with his dogs away from the constant rush and rumble of urban living. It is regrettable that there is so much antipathy and so little empathy in a situation where if not harmonious then, at least, accepted co-existence should pertain.

[38] I am not satisfied that the respondent has engaged in anti-social behaviour towards persons in Moray by keeping a pack of German Shepherd dogs within Woodhead Compound in a remote rural location some 670 metres away from the Duncan's' property.

 

Affected persons

[39] In respect that I am not satisfied that there has been anti-social behaviour towards relevant persons within Moray, I do not have to go on to consider the question of protection of "affected persons" viz. Mr and Mrs Morrison. This said, I must reiterate my bewilderment as to why the applicants chose to instruct and rely upon a report which focuses on property within Aberdeenshire. In any event, I consider the model Messrs Dean and Caldwell chose as their starting point to be inept. BS4142: 1997 is a model for rating industrial noise affecting mixed residential and industrial areas. It states categorically that it does not provide a qualitative assessment of community nuisance or annoyance. I share Mr Waters Fuller's view (and concern) that it is not of assistance in a situation where the residual background noise level is very low - as at Core of Mayen. One consequence (of many) of focusing on property within Aberdeenshire is that Messrs Dean and Caldwell used as their starting point a residual background noise level of 33 dB which is inept for Core of Mayen.

[40] Messrs Dean and Caldwell's evidence in relation to the predicted noise from a (stationary) barking dog was remarkable for its disingenuousness. In response to the consistently measured, scientific approach taken by Mr Waters Fuller, Messrs Dean and Caldwell conceded that their initial predictions were unreliable and inaccurate. However, for some inexplicable reason, they stuck to a prediction of 99 dB notwithstanding the fact that that figure was reached using a computation at odds with their own measurements. I have no difficulty in preferring the figure suggested by Mr Waters Fuller of 95 dB.

[41] There are other and various perplexing and baffling aspects to the report which call into question its evidential value. I see no need to detail them in circumstances where I consider the model to be misconceived and, in any event, not pertinent to nor of any use in the determination of the primary question in this case. I should add that the final, revised and amended report does not address the question of "alarm or distress" to relevant persons. Instead, it refers to the likelihood of "complaints" from "neighbouring properties".

 

Article 8 and proportionality

[42] "Everyone has a right to respect for his private and family life, his home and his correspondence".

[43] The law in relation to the understanding of and application of "human rights" is evolving constantly. I hesitate to express an opinion as to whether the respondent's chosen lifestyle falls within the legal definition of "family life". I have absolutely no doubt that the respondent's day to day routine at Woodhead Compound is, as a matter of fact, his family life. It is an unusual family life: by some it might, perhaps, be perceived to be unsavoury. Perception is not the same as reality. Speculation is not the same as reality. Misinformation distorts reality. The reality is that the respondent's lifestyle at Woodhead Compound does not amount to anti-social behaviour. The respondent's lifestyle choice is not "pro-social" in the sense that for the respondent his community is his pack of dogs. In my view, however, the respondent's lifestyle is deserving of respect whether or not it falls within the legal definition of "family life" and in my considered opinion, there is no justification for interference with the respondent's lifestyle.

 

ASBO procedure

[44] A great deal of time and of public money has been spent as a result of the applicants choosing to apply for a civil statutory order. The statutory framework permits an order only in clearly defined circumstances. I cannot help but wonder not only whether the application was made without full and proper regard being had to the statutory framework but whether it was made as a device by which to try to remove from this jurisdiction one man and his dogs. That man could not contemplate disbanding or decimating his pack of dogs, as history has shown from his response to an ASBO made at a different time, in a different jurisdiction, under different legislation and in different circumstances.