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Your rights when you have a neighbours poultry straying onto your land.

Property clinic: poultry problem from the Telegraphs David Fleming.

12:01AM BST 03 May 2003

Points of law

Chicken-licking battle with the neighbours

Our next-door neighbours have recently decided to keep chickens. The hedge dividing our two properties is jointly owned but does nothing to contain the birds within their garden - they are free to wander in and out of our garden, scratching the earth from the flower beds on to the lawn and pecking the greenery of young plants.

The neighbours claim that badgers and squirrels are free to roam through our gardens (which is true) and there is no need, therefore, to contain their chickens as they wish them to be free-range. (We live in a rural village, surrounded by residential property amounting to 500-plus houses.)

The environmental health officer says his powers relate only to "public health nuisance" which, to date, it is not. Much as I would like to, I am not objecting to the keeping of these chickens, but the principal problem is the unrestrained nuisance they cause within my garden. I would prefer not to go to court to have this treated as a civil matter. What else can I do and what legal rights do I have?

David Fleming writes: Your environmental health officer is wrong to say that he can do nothing unless there is a public health problem. The relevant legislation provides that a statutory nuisance exists, among other things, where any animal is kept in such a place or manner as to be prejudicial to health or a nuisance.

One definition of a nuisance is "acts or omissions generally connected with the user or occupation of land which cause damage to another person in connection with that other's user of land or interference with the enjoyment of land or some right connected with the land".

Clearly, you have been suffering from a nuisance caused by the chickens. You should tell your environmental health officer to be more bullish and serve a notice on your neighbours requiring them to abate the nuisance.

Under the Animals Act 1971, your neighbours are liable to you for damage caused by trespassing "livestock" which includes poultry - although, controversially, not cats. I can well understand that you do not wish to go to law but you would certainly be able to apply for an injunction requiring your neighbours to take action to stop the chickens coming through the hedge.

I can hardly believe that your neighbours are serious in justifying the intrusion by saying that they want the chickens to be "free-range". If they feel that their own garden is not big enough for them, then you might invite them to move.

Interestingly - and rather bizarrely - there is a remedy to deal with the problem that does not involve going to court. You have the right to detain any chickens that come on to your land, provided it can be said that at the time they are not under anyone's control.

Since the chickens can pass through the hedge but your neighbours presumably cannot, they would not be under their control when they do so and I do not think this exception would apply. Your right to detain the chickens will end after 48 hours unless you have by then informed your neighbours that you have them and also have notified the officer in charge of a police station. You will also have to give the chickens back once sufficient money has been tendered to satisfy any claim for damage caused by the chickens and any expenses reasonably incurred in keeping them.

If you have not actually suffered any damage, you have to give them back when asked or, of course, should the court order you to return them. I appreciate that it may be difficult to quantify the exact damage caused by the chickens but I should have thought the reasonable costs of having someone replant your damaged flower-beds would be a good measure of this.

Assuming that your neighbours refuse to pay, then once you have detained the chickens for 14 days you yourself are entitled to sell them, either at a market or by public auction, unless their owners have brought any legal proceedings in the meantime.

I am sure that if you point all this out to your neighbours, they would be most concerned not to risk losing their birds and would invest in some chicken wire which would undoubtedly solve the "trespass" problem. There would, of course, remain the problem of smell and noise, although from what you say it does not seem that you are unduly concerned about this. Essentially, the law of nuisance only protects people against unreasonable actions on the part of their neighbours and it may well be reasonable for your neighbours to keep chickens.

There have been a number of cases reported in the press over the years of people moving to the countryside and complaining of such things as the smell of pigs, the crowing of cockerels and so on. If the presence of the chickens in your neighbours' garden does prove to be a problem for you, then, again, you would have a right to go to court or, as mentioned above, ask the environmental health officer to serve a notice on your neighbours requiring them to put a stop to the nuisance.

  • David Fleming is head of the property litigation department at William Heath & Co.

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