Summers v London Borough of Richmond Upon Thames

Grounds 1 to 4 of Ms Summers’ grounds for review concern Article 5. She contends that, in making the order under Article 5, Richmond:

In developing these grounds, Mr Porter emphasised that the touchstone of any PSPO is the detrimental effect on quality of life of persons living in the locality, which needs to be of a persistent or continuing nature before any order could be made. He submitted that there was no evidence before Richmond that walking six dogs, as opposed to four, had had such a detrimental effect. There had been no more than six individual complaints about people having five or six dogs; even if this was sufficient evidence of detriment itself, Mr Porter argued, there was nothing to suggest that it was persistent or continuing.

Mr Porter maintained that it was for the Council to demonstrate that there were persistent and continuing problems which would not arise if persons were walking four dogs, rather than six. Evidence of incursion into Richmond by dog-walkers from adjoining boroughs whose rules only permitted four dogs, was irrelevant to the question of detriment, he suggested. Article 5 was penalising all those walkers of six dogs who had for 5 years created no issue for anyone in the locality; moreover if walking six dogs was causing a detrimental effect then Richmond’s decision to issue licences permitting certain professional walkers to take out six dogs was illogical: if behaviour is so bad as to be criminal, Mr Porter asked rhetorically, why permit it at all?

Mr Rutledge responded that Mr Porter was identifying “activities in a public place” wrongly, and too narrowly, for the purposes of assessing whether the conditions for the making of a PSPO were met. The activities which Richmond was seeking to regulate and control by means of the PSPO was dog-walking in general. Mr Rutledge contended that by taking no issue with Articles 1-4 of the PSPO, Ms Summers must be taken to have accepted the validity of the PSPO as covering dog control in public spaces. The activities which had or were likely to cause a detrimental effect for the purposes of section 59 of the 2014 Act were those associated with dog walking generally, not multiple dog-walking specifically. Multiple dog-walking was but one aspect of the wider activity at which the PSPO was directed. Accordingly, Mr Rutledge argued, Articles 5 and 6 did not fall to be considered by reference to the conditions set out in section 59(2) and (3), but as restrictions and prohibitions on the activity of dog-walking in general, covered by section 59(5).

Mr Rutledge argued that the court could and should start with the proposition that the first and second conditions in section 59(2) and (3) were met, that dog-walking in general in public spaces had had, or was likely to have, a detrimental effect on the quality of life of residents in the borough and that the effect was, or was likely to be, of a persistent or continuing nature such that it was reasonable to seek to control it. He relied on the fact that the Home Office guidance specifically indicated that PSPOs might cover dog control and numbers of dogs to be walked (see the extract referred to at para 20 above), and on the fact that the 2014 Act had explicitly repealed provisions for DCOs contained in the CNEA 2007, intending DCOs to be replaced by PSPOs .

Mr Rutledge submitted that the question for this court was accordingly whether the prohibition on walking more than four dogs at a time in Article 5 and the requirements as to keeping dogs under proper control in Article 6, were reasonable ones for Richmond to have included in the PSPO, by reference to the considerations set out in section 59(5). When considering the reasonableness of restrictions/prohibitions designed to deal with a detrimental effect it was necessary to do so by reference to the detrimental effect of dog-walking in general, not to take one aspect of dog-walking in isolation, in this case walking five or six dogs.

Mr Rutledge contended that there was more than sufficient evidence before Richmond to justify setting a limit of four on the maximum number of dogs permitted to be walked by one person. In setting that limit but allowing for licences and permits to derogate from it, Richmond had struck a balance between competing interests, taking a proportionate approach to reducing the potential detriment arising from dog-walking in general.

In response Mr Porter drew my attention to the phrasing of the consultation document, arguing that in consulting about the proposed PSPO Richmond itself appeared to have viewed it as a collection of orders tackling particular detriments, rather than as a fresh approach to the issue of dog control generally.

Ms Summers’ Grounds of challenge to Article 6 were as follows:

In submissions Mr Porter confirmed that the Applicant took no issue with the title to Article 6 or para 1(a) thereof. The complaint was as to the terms of 1(b) and (c), and to the definition set out in Article 6 of what constitutes “proper control”. Mr Porter contended that seeking to criminalise (by para 1(b)) those owners whose dogs were “annoying” was illiberal and contrary to the purpose of the 2014 Act, which was to curb seriously anti-social behaviour, not to ban an activity that was simply annoying. The same point applied, Mr Porter said, to “damage” under (1)(c), where it could be argued that a dog will “damage” a patch of turf or a tree every time it urinates on it.

Mr Porter argued further that the definition of “proper control” was unreasonably narrow; a dog running off the lead after a squirrel or pigeon, momentarily distracted, could not be described as a detriment. Such behaviour should not render its owner liable for a criminal offence, he submitted.

Mr Rutledge repeated that we were here concerned with evaluating Article 6 by reference to the provisions of section 59(5) and not as an independent “activity” under section 59(2) and (3). He argued that the definition of “proper control” was supported by evidence and was in itself eminently reasonable. He referred me to evidence of complaints made by members of the public to councillors about uncontrolled dogs in Richmond’s open spaces, being off the lead and unresponsive to commands from owners. Article 6 was to be read with Article 4, Mr Rutledge pointed out: Article 4 requires dogs to be kept on the lead in certain parts of Richmond’s green spaces, but this is balanced by dogs being permitted to be off the lead in other parts, provided that they are under control by being muzzled (if required) and/or on the lead or near at hand and/or trained to respond to their owner’s commands. He drew attention to the ability of the flexible penalty regime to respond according to the nature and seriousness of any breach, permitting “light-touch” enforcement of minor infractions. With that in mind it was reasonable for the Council to have sought to define what was expected of the requirement that a dog be under proper control, that requirement itself being one to which the Applicant could not and did not object.

In relation to Article 6(1)(b), Mr Rutledge relied on the fact that “causing annoyance” was the term used in a previous byelaw. He argued that it was sensible to use the same wording in the PSPO. He emphasised that the restriction had to be viewed in the context of a need to control dog walking generally, where Richmond was satisfied that that was an activity properly falling within section 59(2) and (3). The requirement that a dog should not cause annoyance was a way of addressing that detriment. There was evidence, again in the form of complaints addressed to councillors from residents, that uncontrolled dogs had behaved in ways which could properly be described as “annoying”.

Likewise as regards para (1)(c) there was evidence of complaints about damage caused by increased footfall, dog faeces, worming tablet chemicals and urine, justifying the wording used. The Council would not enforce, Mr Rutledge suggested, in respect of a dog behaving in an ordinary way, urinating against a tree for instance.

In my view Mr Rutledge is correct in his wider definition of “activities” as dog walking in general for the purposes of the first and second conditions in section 59(2) and (3). One of the aims of the PSPO regime was to simplify the previous regulatory “landscape” with its mixture of byelaws and DCOs. Controls had been imposed over dog-walking for many years prior to the introduction of PSPOs, on the obvious principle that dog-walking in public spaces, if uncontrolled, may have an adverse impact on the life of the community in a variety of ways.

I agree with Mr Porter that section 59 of the 2014 Act stands alone and that previous regulations cannot assist with the question of whether or not Richmond correctly observed the requirements of that section in issuing the PSPO. I part company with Mr Porter, however, in my approach to a consideration of how Articles 5 and 6 of the PSPO are to be evaluated under section 59: in my view provisions in the PSPO dealing with the numbers of dogs permitted to be walked by one person at any one time and with the necessity for dogs to be under proper control are properly to be viewed as two aspects amongst many others (such as picking up faeces, exclusions from certain play areas, keeping dogs on a lead) of an overarching concern with dog control in public spaces generally. As such, Article 5 is a prohibition and Article 6 contains requirements both of which fall to be considered under section 59(5).

So far as Article 5 is concerned, I am satisfied that in setting a four-dog limit, subject to a system of licences to be reviewed in a year’s time, Richmond acted reasonably in deciding that this was a prohibition which it was reasonable to impose in accordance with the provisions section 59(5) of the 2014 Act. Richmond had before it the following evidence when making that decision:

The minutes of the RegCom meeting on 11 July 2017 show that the Committee heard representations both for and against the proposals, including from the Applicant and from a representative of the Kennel Club. It considered the advantages and disadvantages of what was being proposed. The Committee reminded itself that it had to look at each proposal under the PSPO and not focus on just the matters raised in writing and at the meeting. It called for clarification of the legal process from the Legal Advisor and was reminded of the specific requirements of section 59 of the Act; the relevant provisions were set out in the minutes. Having received this legal advice, the Chairman read out each proposal one by one after which the members of the Committee made some amendments before voting on the amended proposals.

Mr Porter rightly took no point before me on the result of the statutory consultation regarding maximum numbers of dogs being walked. 59% of respondents to that consultation disagreed with the proposal to reduce numbers from six to four; as he fairly acknowledged, however, this was just one part of the information and evidence taken into account by the RegCom.

The recommendation of the RegCom came to Full Council on 12 September 2017. 54 councillors were there, with the Mayor in the Chair. The minutes of the meeting record the Applicant spoke at length. Her questions were addressed by Cllr Fleming, after which Cllrs Frost, Tippett and Churchill also spoke. I was referred to the collection of email representations received by Cllrs Fleming and Nicholson on the subject of dog-walking in advance of the Full Council meeting. There were a number of public questions asked and answered. The Chair allowed an extended time for debate. An amendment was made to increase the number of licences from 15 to 18 and to require a review of the PSPO after 12 months (it would otherwise be in operation for 3 years). The full Council then voted, deciding to accept the recommendation of the RegCom, with the further amendments.

Mr Porter made the point that the problem of professional dog walkers walking together might be more directly addressed by targeting irresponsible professional dog-walkers, and that setting a four-dog limit would not prevent three walkers, each with four dogs, walking together and having thereby a pack of twelve dogs, in just the same way as two walkers with six dogs each would do.

However my task on this review is not to decide whether Richmond has tackled the problems posed by dog-walking in the best or most logical way but only whether it acted reasonably, on the evidence, in tackling it in the way it has. Starting from the position that dog-walking generally is properly to be viewed as the “activities in public spaces” sought to be controlled, and even applying a careful level of scrutiny to Richmond’s decision-making, I have reached the firm conclusion that the decision to impose a four-dog limit (with conditions as to licences, and review after a year) was reasonable.

Moving to Article 6: I have concluded that Richmond’s decision to include a definition of proper control as part of the requirement under Article 6 was reasonable and in accordance with the provisions of section 59(5). Ms Summers takes no issue with the requirement itself only with the disposition. A penalty could only arise if a dog is “not kept” under proper control, which would allow for momentary distractions or lapses. Against the context of a flexible penalty regime and taking into account the scrutiny given to the wording of each Article of the PSPO in RegCom and in Full Council, I have concluded that Richmond acted reasonably in seeking to define what is meant by the use of the term “proper control” in Article 6.

In my view, however, paras (b) and (c) of Article 6 are objectionable. The instances cited by Mr Rutledge as supporting evidence for the inclusion of a restriction against “causing an annoyance”, when read carefully, are no more than complaints of dogs being out of control. To that extent para (b) adds nothing to the requirement to keep dogs under proper control in para (a), as that term is defined in Article 6. Insofar as (b) addresses behaviours not covered by (a) then in my view there was no evidence that could reasonably have justified that further requirement under section 59(5).

As to para. (c) of Article 6, none of the evidence to which my attention was drawn by Mr Rutledge in the schedule attached to his submissions deals with specific damage done by any individual dog to a “Council structure, tree plant turf or other Council property”. Damage to paths or ecology resulting from the presence of an increased numbers of dogs is a separate matter from wilful damage caused by any individual dog. I have seen no evidence to suggest that that was a problem requiring a requirement specifically to address it, over and above the requirement that a dog be kept under proper control (as defined).

Turning lastly to the exemptions to the PSPO (“the Exemptions”) Mr Porter submitted that these were objectionable in two ways, first because the definition of “prescribed charities” listing three named charities was simply a cut-and-paste from the wording of an out-of-date byelaw. He pointed out that one of these charities no longer exists by the name given and suggested that Richmond could not have taken account of the letter from the Kennel Club submitted to it naming eight charities registered as training assistance dogs. The inequality and unfairness was accepted, Mr Porter pointed out, by Mr Allister in his witness statement prepared for the hearing (at para 75) stating as follows:

“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”

Mr Porter’s second objection was to the words in parentheses in the Exemptions, requiring assistance dogs to be identified as such when out in public.

The Grounds of Review, whilst asserting that these matters were discriminatory, made no reference to any provisions of the Equality Act 2010. I found the assertion that certain parts of the Exemptions were “discriminatory” of little assistance in identifying whether there had been an actionable breach of the Equality Act 2010, or what remedy might be available in the context of a statutory review under section 66 of the 2014 Act. As will be seen, when these questions were addressed by counsel, an interesting jurisdictional clash appeared.

Mr Rutledge’s original response was limited to taking issue with Ms Summers’ standing: since she did not herself have a disability, nor an assistance dog, he argued, she had no standing to take any point arising under on discrimination.

I have set out section 66(1) and (2) of the 2014 Act above. Under that section any “interested person” may apply to question the validity of a PSPO on one or both of two grounds: (i) that the authority acted outside its power in making the order or including any prohibitions or requirements and/or (ii) that the authority did not adopt the correct procedure before making the order.

There is no question that Ms Summers fits the definition of an “interested person” as she lives in Richmond and owns a dog which she regularly walks in the public spaces. As such, she is entitled to question the validity of the PSPO on any ground properly falling within section 66 of the 2014 Act. Whilst the statutory provision for a challenge under section 66 shares many features with judicial review, standing is not approached in the same way; the right of a person to challenge a PSPO is exclusively determined by the provisions of section 66(1). Although section 66(6) includes reference to quashing an order, or any prohibition or requirement imposed by the order “so far as necessary for the protection of the interests of the applicant”, I do not think that these words can be read as restricting the standing of an applicant to bring a challenge, if they are otherwise an “interested person”.

As I have pointed out above, there was no reference to the EA 2010 in the Grounds of Review. The only provision of the Equality Act 2010 cited or relied upon by Mr Porter in his opening submissions on this application was section 15, which provides as follows

“(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.”

Mr Porter’s case was that, by omitting certain charities from the definition of “prescribed charities”, and by requiring assistance dogs to be marked out as such, persons with disabilities were being discriminated against within the meaning of the term as defined by section 15. Mr Porter asserted that provisions of the PSPO which were discriminatory must be ultra vires. However I wanted to know how Ms Summers put her case for a breach of the EA 2010 and specifically which provisions were being relied on for that case.

In response, Mr Rutledge sought to assist (although, as he pointed out, it was not his case to make). He drew my attention to Part 3 of the EA 2010 which deals with discrimination in the context of services and public functions. Section 29(6) in Part 3 provides that:

“ 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.”

Enforcement of section 29 is dealt with in Part 9 of the EA 2010. Section 113 provides that proceedings relating to a contravention of the EA 2010 must be brought in accordance with that Part: see section 113(1). Exceptions to this requirement are set out in sub-section (3) and include a “claim for judicial review”, but following the decision of the Court of Appeal in the case of Hamnett v. Essex County Council [2017] 1 WLR 1155, it is clear that this description is not apt to cover a statutory review such as that provided for by section 66 of the 2014 Act (see [15] and [24(iv)] of the decision in Hamnett, where Gross LJ approved the decision of Singh J at first instance).

Section 114 of the EA 2010 (headed “Jurisdiction”) provides that a county court has jurisdiction to determine a claim relating to “(a) a contravention of Part 3 (services and public functions)”: see section 114(1).

The effect of sections 113 and 114 of the EA 2010 is to confer exclusive jurisdiction on the county court to hear and determine any claim for breach of section 29 EA 2010. To my mind, the requirement for a discrimination claim to be brought in the county court, with assessors assisting the judge who hears the claim (see section 114(7)) makes obvious sense, given the context-sensitive nature of an enquiry as to whether or not there has been discrimination.

There is, however, an apparent clash between the above provisions as to jurisdiction contained in sub-sections 113 and 114 of the EA 2010 and the ouster clause at section 66(7) of the 2014 Act. Under section 66(7) only the High Court may hear and determine a challenge to a PSPO; under sub-sections 113 and 114 of the EA 2010 only the county court may hear and determine a claim for breach of section 29 EA 2010.

A very similar jurisdictional clash was considered by the Court of Appeal in Hamnett. Hamnett concerned experimental traffic orders (“ETROs”) made by the local highway authority under the Road Traffic Regulation Act 1984 (“RTRA 1984”). The ETROs operated to close certain roads to private cars, thereby removing parking spaces on those streets that had previously existed for cars driven by persons with disabilities. The claimant in Hamnett sought a statutory review of the ETROs under para.35 of Schedule 9 to the RTRA 1984 on the grounds that the local authority had, inter alia, breached its duty not to discriminate in the exercise of its public functions under section 29 of the EA 2010.

Hamnett has close parallels with the instant case as the wording of paras 35-37 of Schedule 9 of the RTRA 1984 dealing with the scope of the statutory review in that case share many of the same features as section 66 of the 2014 Act, viz: challenges to be brought in the High Court (para.35 of Schedule 9, cf section 66(1) of the 2014 Act), “powers” and “procedure” grounds of challenge (para 35(a) and (b) of Schedule 9, cf section 66(2(a) and (b) of the 2014 Act), power to suspend until final determination (para 36(1)(a) of Schedule 9, cf s.66(4) of the 2014 Act), power to quash (para 36(1)(b) of Schedule 9, cf s.66(5) of the 2014 Act) and an ouster clause (para 37 of Schedule 9, cf s.66(7) of the 2014 Act).

In Hamnett, Singh J (as he then was) decided that as a complaint of discrimination under section 29 EA 2010 could only be brought in the county court, the High Court hearing a claim for statutory review under para 35 of Schedule 9 of the RTRA 1984 did not have jurisdiction to hear it. The claimant appealed that part of his decision.

By the time the appeal was heard, the ETROs had long-since expired, so that the appeal was academic. This was the primary ground upon which the Court of Appeal dismissed the appeal. However the court heard the jurisdiction argument de bene esse and went on to discuss the issue in its judgment, albeit (as Gross LJ noted at [35]) with rather less argument on the point than they might otherwise have sought.

The solution to the jurisdiction “conundrum” adopted by the Court of Appeal in Hamnett was the seldom-used principle of implied repeal: see [24-28] of the judgment of Gross LJ. As the EA 2010 was enacted after the RTRA 1984 the provisions of sub-sections 113-114 of the later Act were taken to have impliedly repealed the provisions of the ouster clause in Schedule 9 of the RTRA 1984 in relation to a claim under section 29 of the EA 2010.

In the present case the 2014 Act post-dates the EA 2010, accordingly the doctrine of implied repeal cannot apply to the ouster clause at section 66(7) of the 2014 Act.

I am not prepared to find that doctrine of implied repeal operates in reverse here, namely that by the inclusion of an ouster clause at section 66(7) of the 2014 Act, Parliament must be taken to have intended to repeal the jurisdiction provisions in sub-sections 113 and 114 of the EA 2010 as applied to PSPOs. The fact that the provisions of the EA 2010 are specific to discrimination claims would militate against the operation of the doctrine here. Moreoever I share the view of Singh J and the Court of Appeal in Hamnett that a part 8 procedure in the High Court, with evidence on witness statements only (and with no assessors to assist) is an inappropriate venue to investigate whether or not a local authority has acted in breach of section 29 EA 2010. As Mr Rutledge pointed out, context is everything in determining whether a public authority has treated a person with a disability unfavourably and if so whether its actions were nevertheless “a proportionate means of achieving a legitimate aim” under section 15(2) of the EA 2010.

The claimant in Hamnett had also relied on section 149 of the EA 2010, alleging breach of the public sector equality duty. Section 149 provides that a public authority must in the exercise of its functions:

“..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.

At one point Mr Porter indicated that he would seek to rely on a breach of the section 149 public sector equality duty, but as Mr Rutledge pointed out, section 149 was not referred to in the Applicant’s Grounds nor in Mr Porter’s skeleton for the hearing. Although, at para. 22 of the Grounds and at para. 41 of Mr Porter’s skeleton, there was brief reference to alleged inadequacies in Richmond’s Equality Impact and Needs Assessment the legality of that assessment was not in terms challenged. I agree with Mr Rutledge that if the Applicant had been seeking to challenge the discharge of Richmond’s public sector equality duty under section 149 EA 2010 then quite different evidence would have been required.

I am satisfied that I do not have jurisdiction to investigate a claim for breach of section 29 of the EA 2010. Whilst the Applicant has standing, in principle, to seek statutory review in the High Court of a PSPO on whatever grounds may fall within section 66(2), this court does not have jurisdiction to investigate a breach of section 29. No proper case has been made for any breach of the section 149 public sector equality duty.

I am aware that, applying the logic of Gross LJ in the Hamnett case, but without recourse here to the doctrine of implied repeal, my decision that I lack jurisdiction to entertain a section 29 investigation on this statutory review could be said to leave a statutory lacuna. Neither Mr Porter nor Mr Rutledge addressed me in any detail on the point. The answer may be that the public sector equality duty in section 149 represents sufficient protection for persons with protected characteristics who might be impacted by any terms of a PSPO, however a final determination on this point will have to await another case where the point is more fully addressed.

The Applicant’s complaints of “discriminatory” provisions in the Exemptions to the PSPO cannot, therefore, provide her with any ground for review under section 66.

For the reasons given above I shall order that paras 1(b) and (c) of Article 6 be quashed. The remainder of this application for statutory review will be dismissed.