EHJ June 2005, pages 16-18

Carlisle Housing Association recently took out its third antisocial behaviour injunction against two local tenants following a noise dispute with their disabled neighbour. EHJ reports on a three-year harassment campaign that ended in the county court and was the focus of a Sky 1 documentary

It was a surprising and unexpected twist in a long running feud between neighbours, which had kicked off in June 2001. But in February this year, a judge at Carlisle's county court handed an antisocial behaviour injunction to 82-year-old pensioner John Kirkpatrick, and his 55-year-old son, also John, after they admitted playing their TV and radio at full volume to harass their disabled neighbour. Father and son now face a legal bill of more than £2,000, and also face the threat of prison if the injunction is breached.

In court, the Kirkpatricks claimed that they were taking retaliatory action against 65-year-old neighbour Tommy Dunn, who they said had subjected them to prolonged noise nuisance. According to the Kirkpatricks, Tommy Dunn, a retired road worker and club compare who has had both legs amputated, had forced them to endure years of loud music at night and entertaining ladies. But EHOs from Carlisle CC who investigated could find no evidence for the allegations.

The case began to resemble a soap opera when Carlisle Housing Association, Tommy's landlord, followed up his allegations that the Kirkpatricks were subjecting him to unrelenting hours of loud TV and radio broadcasts. An investigation proved that this was the case and father and son were served with abatement notices.

Stephen Harrison, senior tenancy enforcement officer at Carlisle Housing Association, first became involved in early 2003, when he was assisting the CHA's former housing manager, then the principal officer dealing with the case. He says that the CHA and Carlisle CC took the Kirkpatricks' allegations seriously and investigated them extensively but neither found any evidence of noise nuisance. Despite this finding, the Kirkpatricks issued at least three separate applications at the city's magistrates court under section 82 Environmental Protection Act 1990, against Tommy Dunn alleging noise nuisance.

"They alleged that he was playing loud music throughout the night, singing, and entertaining ladies," explains Mr Harrison. "All of these allegations were denied by Mr Dunn, who stated that due to his severe state of ill-health, he usually went to bed between 7.30-9pm each night, except for Saturdays when he went to his local club for a few pints, but was home by about 11pm. He did admit to snoring, needing the toilet during the night, and once falling out of bed, which required him to pull the 'Careline' cord for emergency attention."

Stephen Harrison says that in this particular incident, female Careline staff arrived to put Mr Dunn back into bed, and while he was on the floor, a female Careline control room operative spoke to him via the Careline intercom system. He believes that this probably accounts for the alleged incident involving Mr Dunn having "ladies" call to him during the night. But according to Mr Harrison, this was an isolated case, which conflicts with the accusations made by the Kirkpatricks that Tommy Dunn regularly entertained females.

Following this particular incident, Mr Harrison carried out three separate surveillance visits to the Kirkpatricks' home during the night between April-May 2004 where he listened for any noise nuisance from Mr Dunn. All observations were carried out under the authority of the Regulations of Investigatory Powers Act 2000. "On all three occasions, I made observations with another CHA officer, and made detailed notes during the sessions," he says. "But we witnessed no noise nuisance whatsoever during these three sessions."

What CHA officers did observe, however, was the attitude and behaviour of John Kirkpatrick junior who they concluded appeared to be obsessed and persistent in making noise nuisance allegations against Mr Dunn. "There was a degree of desperation with Mr Kirkpatrick junior urgently wanting CHA to catch Mr Dunn making a noise, with John Kirkpatrick junior at one stage almost threatening: 'you'd better catch him tonight, we want him out'," says Mr Harrison of the officers' last visit.

During this event, CHA discovered that the Kirkpatrick's had spent about £4,000 on additional sound-proofing insulation which had been added to the internal dividing wall between the two properties, in both bedrooms and in the loft space. A 100mm thick timber frame was attached to the existing brick party wall, filled with acoustic rock wool, and sealed with standard plasterboards.

With the surveillance visits completed, Mr Harrison wrote to the Kirpatricks to summarise his three sessions and to inform the father and son that no incidents of noise nuisance had been detected. As the agreed three sessions had been carried out, CHA added that no further observations would be taken from their home. What's more, Mr Harrison said that based on his conclusions from the surveillance, together with previous findings, CHA had no intention of taking any form of action against Mr Dunn. The case effectively was closed.

Or so it seemed. But on hearing this news, Mr Harrison says the Kirkpatricks began what could only be described as a revenge campaign against Mr Dunn, playing music from their property at excessive volumes "in order to deliberately harass, annoy and intimidate him."

The loud music was witnessed by a number of people, including visitors to Tommy Dunn's house, by Stephen Harrison's CHA colleague Keith Forrester, and by a neighbour who lives across the street. Fiona Donald, EHO at Carlisle CC, received a complaint from Mr Dunn on 1 June 2004 and made an unannounced visit to his home at 9.50am the following day. "On entering the property loud music and radio commentary could clearly be heard," she says. "The noise was coming from the neighbouring property...through the shared party wall. The officers could identify the words to the songs and commentary and recognised the local radio station's signature tune."

Mr Dunn told the EHOs that the Kirkpatricks had been playing loud music for about three weeks, which usually started at around eight in the morning and continued until nine at night each day. Ms Donald approached the Kirkpatricks and informed the father and son that the noise was affecting a neighbouring property and that if it persisted she would serve a noise abatement notice.

It wasn't the first time that Carlisle CC had dealt with the Kirkpatricks. In November 2002, EHOs had followed up a noise complaint from father and son about Tommy Dunn's loud music and shouting. However, investigations involving noise diaries and night-time visits failed to substantiate their complaints. Interestingly, the council's records showed that father and son had also logged a similar complaint about Mr Dunn's predecessor, who was also wheelchair bound, but investigations found no evidence. The elderly female tenant, who lived in the property for about two years, had to request a transfer to alternative accommodation after complaining of "knocks on the doors and windows".

Following the EHOs' initial visit, the Kirkpatricks breached the notice four times that month, resulting in legal action being brought by the council. A notice was served against the Kirkpatricks, which they subsequently appealed against on the grounds that it was not justified by section 80 the Environmental Protection Act 1990 and the nuisance was caused by Mr Dunn.

Carlisle CC called Stephen Harrison and Keith Forrester to give evidence at the appeal at Carlisle magistrates on 16 September. Also present was Mr Dunn, who the Kirkpatricks had asked to appear.

"Mr Dunn was very apprehensive and nervous about the prospects of giving evidence in court," says Mr Harrison "but was prepared to do so, hoping that this hearing would be the final conclusion to what had been a long-running dispute, with Mr Dunn being at the centre of the allegations."

However, as the hearing began, John Kirkpatrick junior (representing himself and his father) asked the presiding magistrate to ask all witnesses to wait outside and be called individually to give evidence. The hearing lasted only 15 minutes and ended with the magistrate dismissing the Kirkpatricks' appeal, based on their own admission that they caused noise nuisance to Mr Dunn. The case, however, was far from closed. "Within 15 minutes of Mr Dunn's arrival home from the hearing, he was handed a letter by John Kirkpatrick junior, dated 16 September, signed by both he and his father," says Mr Harrison. "The letter read: 'Could you please keep you music and singing down between 11pm and 7am? We are giving you three days notice of this letter, as we intend to take action under Section 82 of the Environmental Protection Act 1990'."

Naturally, Tommy Dunn was taken aback by the Kirkpatricks' actions and, according to Stephen Harrison felt "harassed, frightened and distressed". Mr Harrison promptly wrote to father and son regarding the warning letter to inform them that the CHA was now considering legal proceedings against them either on behalf of Mr Dunn under the Protection from Harassment Act 1997, or by way of seeking a section 153 Anti-Social Behaviour Injunction (Anti-Social Behaviour Act 2003). He also requested that father and son provide a written undertaking that they would not cause Tommy Dunn any further harassment, otherwise legal action would be taken.

In October, the Kirkpatricks responded with a letter, which, according to Mr Harrison, was "not only a refusal to provide CHA with an 'undertaking' but also a slightly confused invitation to commence legal proceeding against them under the Environmental Protection Act 1990."

Over the next few months, the Kirkpatricks appeared to cease their harassment but on 20 December, Keith Forrester received a voicemail from Mr Dunn regarding incidents over the weekend. Stephen Harrison visited Tommy Dunn the following day. "Mr Dunn provided me with a further sheet of paper on which he had recorded the events of the weekend," says Mr Harrison. "In the early hours of Friday, Saturday, Sunday and Monday mornings he had heard loud banging on the party wall between the two properties. The timings ranged from 12 at night to four in the morning on these occasions. Mr Dunn was clearly upset about the incidents."

As a result, CHA successfully brought an interim injunction against the Kirkpatricks under the Anti-Social Behaviour Act 2003 at Carlisle County Court on 23 December 2004. At the full hearing on 7 January, father and son accepted the injunction and its terms without defence, which remains in place until 22 July 2005. They also accepted the costs of the proceedings at the final hearing on 7 February at the agreed and reduced amount of £2,312.90.

Since then, Tommy Dunn has had no further incidents of harassment or accusation against him from the Kirkpatricks. However, during the filming of a TV documentary for Sky 1, it became clear that the Kirkpatricks continue to believe that their neighbour causes them noise nuisance. OAPs with ASBOs was aired last month and reveals the dispute is still very much alive.