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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Summers v London Borough of Richmond Upon Thames  EWHC 782 (Admin) (12 April 2018)
Cite as:  1 WLR 4729,  WLR 4729,  WLR(D) 217,  LLR 624,  EWHC 782 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and -
London Borough of Richmond Upon Thames
Kelvin Rutledge QC and Kuljit Bhogal (instructed by South London Legal Partnership) for the Respondent
Hearing dates: 27 – 28 February 2018
Crown Copyright ©
Mrs Justice May:
The wording of the PSPO
"This Order comes into force on 16 October 2017 and lasts for a period of 3 years from this date, unless extended pursuant to section 60 of the [2014 Act]
In this Order the following definitions apply:
"Restricted area" means the land described and/or shown in the maps in the Schedule to this Order
"Prescribed charity" means –
(i) Dogs for the Disabled (registered charity number 700454);
(ii) Support Dogs Ltd (registered charity number 1088281);
(iii) Canine Partners for Independence (registered charity number 803680)
Article 1 Dog Fouling
Article 2 – Dog Exclusion from Barn Elms (playing fields) and Petersham Meadows
Article 3 – Dog Exclusion from play or sports areas
Article 4 – Dogs on leads
(1) A person in charge of a dog shall be guilty of an offence if, at any time, his dog is not on a lead in the restricted area unless –
a. he has a reasonable excuse for failing to do so; or
b. the owner, occupier or other person or authority having control of the restricted area has consented (generally or specifically) to his failing to do so.
Article 5 – Multiple Dog Walking
(1) A person in charge of a dog shall be guilty of an offence if, at any time, and at the same time, he takes on to the restricted area more than four dogs unless-
a. he has a licence issued by the Council permitting more than four dogs; or
b. he has a reasonable excuse for doing so; or
c. the owner, occupier or other person or authority having control of the restricted area has consented (generally or specifically).
Article 6 – Dogs to be kept under proper control
(1) A person in charge of a dog in the restricted area shall be guilty of an offence if –
(a) his dog is not kept under proper control; or
(b) his dog causes an annoyance to any other person or animal; or
(c) his dog causes damage to any Council structure, equipment, tree, plant, turf or other Council property.
In this Article "proper control" means a dog being on a lead or muzzled if the dog requires it, or otherwise being at heel/close enough to the person in charge that it can be restrained if necessary or responding immediately to voice commands.
(2) Nothing in Articles 1, 2 and 3 of this Order applies to –
a. a person who is registered as a blind person in a register compiled under Section 29 of the National Assistance Act 1948; or
b. a person who is deaf, in respect of a dog trained by Hearing Dogs for Deaf People (registered charity number 293358) and upon which that person relies for assistance (dogs must be clearly marked as assistants); or
c. a person who has a disability which affects that person's mobility, manual dexterity, physical co-ordination or ability to lift, carry or otherwise move everyday objects, in respect of a dog trained by a prescribed charity and upon which that person relies for assistance (dogs must be clearly marked as assistants); or
d. a person who is training an assistance dog in an official capacity; or a dog used by the police or other agencies permitted by the Council for official purposes.
It is an offence under section 67 of the Act for a person without reasonable excuse –
(a) to do anything they are prohibited from doing by a public spaces protection order, or,
(b) to fail to comply with a requirement which they are subject to under a public spaces protection order.
A person guilty of an offence under section 67 is liable on summary conviction to a fine not exceeding level 3 on the standard scale."
Dog control in Richmond prior to the making of the PSPO
Introduction of the PSPO
Making and challenging a PSPO under the 2014 Act
"(1) A local authority may make a public spaces protection order if satisfied on reasonable grounds that two conditions are met.
(2) The first condition is that—
(a) activities carried on in a public place within the authority's area have had a detrimental effect on the quality of life of those in the locality, or
(b) it is likely that activities will be carried on in a public place within that area and that they will have such an effect.
(3) The second condition is that the effect, or likely effect, of the activities—
(a) is, or is likely to be, of a persistent or continuing nature,
(b) is, or is likely to be, such as to make the activities unreasonable, and
(c) justifies the restrictions imposed by the notice.
(4) A public spaces protection order is an order that identifies the public place referred to in subsection (2) ("the restricted area") and—
(a) prohibits specified things being done in the restricted area,
(b) requires specified things to be done by persons carrying on specified activities in that area, or
(c) does both of those things.
(5) The only prohibitions or requirements that may be imposed are ones that are reasonable to impose in order—
(a) to prevent the detrimental effect referred to in subsection (2) from continuing, occurring or recurring, or
(b) to reduce that detrimental effect or to reduce the risk of its continuance, occurrence or recurrence.
"Our aim in reforming the anti-social behaviour powers is to give the police, councils and others more effective means of protecting victims, not to penalise particular behaviours. Frontline professionals must use the powers in [the 2014 Act] responsibly and proportionately, and only where necessary to protect the public."
Penalties for breach of a PSPO
Challenges under section 66 of the 2014 Act
"66 Challenging the validity of orders
(1) An interested person may apply to the High Court to question the validity of—
(a) a public spaces protection order, or
(b) a variation of a public spaces protection order.
"Interested person" means an individual who lives in the restricted area or who regularly works in or visits that area.
(2) The grounds on which an application under this section may be made are—
(a) that the local authority did not have power to make the order or variation, or to include particular prohibitions or requirements imposed by the order (or by the order as varied);
(b) that a requirement under this Chapter was not complied with in relation to the order or variation.
(3) An application under this section must be made within the period of 6 weeks beginning with the date on which the order or variation is made.
(4) On an application under this section the High Court may by order suspend the operation of the order or variation, or any of the prohibitions or requirements imposed by the order (or by the order as varied), until the final determination of the proceedings.
(5) If on an application under this section the High Court is satisfied that—
(a) the local authority did not have power to make the order or variation, or to include particular prohibitions or requirements imposed by the order (or by the order as varied), or
(b) the interests of the applicant have been substantially prejudiced by a failure to comply with a requirement under this Chapter,
the Court may quash the order or variation, or any of the prohibitions or requirements imposed by the order (or by the order as varied).
(6) A public spaces protection order, or any of the prohibitions or requirements imposed by the order (or by the order as varied), may be suspended under subsection (4) or quashed under subsection (5)—
(a) generally, or
(b) so far as necessary for the protection of the interests of the applicant.
(7) An interested person may not challenge the validity of a public spaces protection order, or of a variation of a public spaces protection order, in any legal proceedings (either before or after it is made) except—
(a) under this section, or
(b) under subsection (3) of section 67 (where the interested person is charged with an offence under that section)."
"The court can only interfere on the ground that the minister has gone outside the powers of the Act or that any requirement of the Act has not been complied with. Under this section it seems to me that the court can interfere with the minister's decision if he has acted on no evidence; or if he has come to a conclusion to which on the evidence he could not reasonably come; or if he has given a wrong interpretations to the words of the statute; or if he has taken into consideration matters which he ought not to have taken into account, or vice versa; or has otherwise gone wrong in law"
The arguments on Articles 5 and 6
(1) Failed to identify the detrimental or likely detrimental effect of walking five or six dogs in a public space;
(2) Failed to identify the persistent or continuing nature of the detrimental effect of walking five or six dogs in a public space;
(3) Failed to identify that the detrimental effect of walking five or six dogs in a public space is such as to make that activity unreasonable; and
(4) Failed to identify that the effect of walking five or six dogs justified the restrictions imposed by the PSPO.
(1) A failure to identify any detrimental or likely detrimental effect of dogs causing annoyance in public spaces.
(2) A failure to identify any persistent or continuing detrimental effect of dogs causing an annoyance in public spaces.
(3) A failure to identify that the detrimental effect of dogs causing an annoyance in public spaces is such as to make unrestricted dog walking unreasonable.
(4) A failure to identify that the effect of dogs causing annoyance justifies the restrictions imposed by the PSPO.
(5) Failure to satisfy itself on reasonable grounds that the two conditions set out in section 59 were met.
(6) A failure to consider the requirements of section 59(5).
(7) A failure to comply with the obligations of section 61(2) of the 2014 Act in that the provisions of Article 6 impose wider restrictions than in any previous orders.
Conclusions on Articles 5 and 6
a) A table showing the increase in numbers of commercial dog walkers using Ham Lands for 1-4 walks per day between 2012 and March 2016, from 6 per day in 2012, to 31 per day in March 16. Many people who responded to the council's statutory consultation expressed concern over the displacement of walkers from surrounding areas where there was a four-dog limit.
b) Emails from borough residents and professional dog trainers asking for a cap of four on the number of dogs to be walked by one person, expressing the view that numbers above this could not properly be controlled.
c) The results of a survey by South West London Environment network (SWLEN) in which 67% of respondents had said that walking more than four dogs was an issue with 94% supporting Richmond's proposal to introduce a limit on the number of dogs.
d) A letter from the Chief Executive of the National Association of Pet Sitters and Dog Walkers stating "We are in agreement that the maximum four dog rule should be introduced for commercial dog walkers, in line with our terms and conditions and code of practice, which have been written in consultation with the RSPCA. This is something that is being introduced across many boroughs in the UK at the moment..".
e) An email from the MP for Richmond Park and N Kingston, Zac Goldsmith including the following: "As MP… I have received correspondence from local people regarding the number of dogs being walked together in large packs (which can be frightening for children and older residents).."
Exemptions to the PSPO
"I accept that the PSPO/DC includes an out-dated name and charity number for Dogs for Good. However this would not be an impediment to exempting assistance dogs from the re-branded charity. This will be updated in the PSPO at the first opportunity, probably on the one-year review. In the meantime our enforcement officers will be instructed to ensure dogs trained buy the relevant charity are also exempted"
The Applicant's standing
The Equality Act 2010
"(1) A person (A) discriminates against a disabled person (B) if –
(a) A treats B unfavourably because of something arising in consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim."
" a person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation."
"..have due regard to the need to (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it."
In Hamnett there was no dispute that the High Court had jurisdiction to hear any complaint based on section 149. Singh J heard and dismissed the claim based on section 149 and there was no appeal against that part of his decision.