Nigel Cox v Oldham Council

The parties produced an email exchange. Within that exchange the appellant queried the value of Mr Moore’s evidence as he was not the person who conducted the inspection and produced the report.

In preliminaries, I noted the email exchange. I queried with the respondent’s representative the weight I could give to Mr Moore’s statement on the basis that he had not conducted the report. The respondent’s representative confirmed that Mr Moore was able to confirm whether the report reflected the contents of the councils records as completed by Ms Crowther. The respondent’s representative confirmed that Mr Moore would be able to comment upon whether the conclusions drawn within the report were appropriate in light of the recordings of Ms Crowther. The respondent’s representative accepted that Mr Moore could not comment in the event that there was a dispute as to whether the recordings of Ms Crowther were an accurate record of the investigation. In other words, Mr Moore would not be able to comment if there was a factual dispute as to the accuracy of the report as recorded by Ms Crowther.

I also asked the respondent’s representative what weight should be attached to Ms Crowther’s report given that she was not at the hearing to have the content of that report tested under cross-examination. Again, the respondent’s representative acknowledged this issue. The respondent’s representative did not seek an adjournment and could not give an indication of when Ms Crowther might be available. The respondent’s representative confirmed that she was content to proceed notwithstanding the issues the tribunal had highlighted.

In light of the issues that I had highlighted and given that the Appellant would not be able to cross examine Ms Crowther upon the content of her report I asked the Appellant whether he was content to proceed. The appellant confirmed that he was content to proceed.

I heard oral evidence from the Appellant and Mr Moore I heard oral submissions from the Respondent’s representative and the Appellant. The oral evidence and submissions are fully recorded in the record of proceedings and have been considered.

In preliminaries I noted that the appellant had not provided a witness statement. I explained to the appellant that I had read his grounds of appeal which included a supporting document setting out the areas of challenge to the respondent’s report. I confirmed that I had also read the appellant’s reply to the respondent’s response which again set out the appellant’s position in relation to the elements of the report/decision that were in dispute. The appellant confirmed that he wished these documents to stand in lieu of a witness statement . Having confirmed that these documents were true and accurate the Appellant adopted both documents as the Appellant’s evidence in chief. I then gave the appellant the opportunity to tell the tribunal anything that he thought relevant that had not been included within those documents.

I took care and time to ensure that all relevant documents were before the Tribunal. I informed the representatives of the documents that were held on the Tribunal file including the 513 page appeal bundle; animal welfare licence from Manchester City Council dated the 13 September, animal activity licence from Wyre Forest District Council issued to the appellant licensing the selling of animals as pets; and the email exchange referred to above.

Having done so the parties confirmed that all relevant documents were before the Tribunal. The representatives confirmed that they had received and had the opportunity to review each other’s documents.

I have considered all the documentary evidence together with the written submissions prepared on behalf of the parties contained within the bundle and the oral submissions made at the hearing. However, I do not rehearse all the documentary evidence in detail but include in this decision and reasons such evidence as was relevant to my decision.

The Respondent’s case as set out within the response and oral submissions can be summarised as follows:

The Appellants’ case as set out within the grounds of appeal; reply and oral submissions can be summarised as follows:

The appellant states that the earlier determination of Judge Ford should be ignored and this appeal should be considered on its merits.

It is trite law that a party should not be entitled to relitigate issues which have been conclusively determined by an earlier court or tribunal. However, the appeal before this tribunal is in relation to a separate application to that which was before Judge Ford. Albeit I accept, that the application was made shortly after Judge Ford’s determination. Nonetheless there is evidence before this tribunal that was not before Judge Ford to include amended processes and procedures. Accordingly, I determine this appeal upon its own merits. Albeit, that past compliance is an indicator of future compliance.

I find that when the email exchanges, the report, the decision of Judge Ford and earlier refusals are considered as a whole it is clear that the appellant has received significant assistance, guidance and feedback as to what he is required to do to enable him to comply with licence conditions. Despite this, as set out in my findings below, the appellant has still failed to adequately deal with the alleged contraventions of licence conditions set out within the report. This history weighs against the appellant’s claim that he will comply with licence conditions.

The author of the inspection report did not attend the hearing to have her evidence tested under cross examination. I must consider this where there is a dispute of fact concerning the observations recorded within the report. In these circumstances the weight that I give to the report may be reduced. Where the dispute relates to the opinions or conclusions of the report I must consider the extent to which the opinion or conclusions is supported by external evidence.

The respondent has produced a witness statement from Daniel Moore, a senior officer. As set out above Mr Moore did not conduct the inspection or compile the report. Mr Moore is able to speak to the usual practice of an officer to include keeping detailed and contemporaneous notes and he can describe the processes and procedures of the respondent to include in relation to decision making. I place weight upon Mr Moore’s evidence in this regard. However, Mr Moore is unable to speak to the factual accuracy of the report. Accordingly, in this regard, the weight I attach to Mr Moore’s report is reduced

The appellant has produced animal licences from two local authorities. In particular a licence from Manchester City Council dated 13 September 2023 licensing the sale of animals as pets. The Appellant has been afforded a 2 star rating. The Appellant has also produced a licence from Wyre Forest District Council which came into force on 11 July 2023 licensing the sale of animals as pets. The Appellant has been awarded a 5 star rating. The licence authorises the sale of tropical and marine fish, axolotl and terrapin turtles. The Appellant asserts that other local authorities have considered the appellant’s applications, processes, procedures and training requirements and are satisfied that he will comply with licence conditions which is indicative of compliance.

I accept that the grant of licences by other local authorities is evidence that those local authorities were satisfied with the appellant’s application, inspection of other premises and are satisfied that he will comply with licence conditions. Accordingly, I give the licences some weight as corroborative evidence of the appellant’s ability to comply with licence conditions particularly as the licence issued by Wyre Forest District Council is for a very similar activity. However, the appellant has not produced details of his application, the correspondence passing between him and the local authority, the documentation submitted with the relevant applications nor details of the inspection report in respect of those licences. In short the Tribunal does not know the procedural rigour that was applied when processing those applications. Accordingly, the weight that I give to the appellant holding similar licences issued by other local authorities is reduced.

During his cross-examination of Mr Moore and in oral submissions the appellant questioned the level of assistance that he had received from the local authority. The appellant described the process as “having one shot” in the form of application to ensure that everything was in order. The tribunal asked Mr Moore whether other businesses of similar size to the appellant’s undertaking similar activities would be provided with advice and assistance. Under cross examination Mr Moore asserted that in the appellant’s case further advice and assistance would add little as detailed reports had been given on two occasions as to the issues that the appellant needed to rectify in order to obtain a licence and these issues has also been considered by Judge Ford in her determination.

Although not couched in these terms the appellant’s case in this regard is essentially that if he were afforded appropriate advice and assistance he would be able to comply with licence conditions. I do not agree. The appellant has made applications for a licence on at least two separate occasions. On each occasion there has been an inspection. On each occasion, following inspection, the appellant has been provided with a detailed written report. The reports were further considered by Judge Ford in her determination. When the current report is considered alongside the history of the appeal it is clear that the appellant has been given a significant amount of advice and guidance as to what is required to comply with licence conditions. I do not accept the appellant’s assertion that further advice and guidance should be provided by the local authority which will in turn enable the appellant to comply. The appellant should know from the report and earlier refusals and reports what is required.

I find that the Appellant’s approach to alleged contraventions of licence conditions is to seek to minimise the alleged breach; to ignore the requirements for record keeping where he considers these unnecessary and ignore the need for evidencing the efficacy of procedures for the welfare of animals where he feels that his experience in the industry negate the need for external evidence. By way of example only:

The appellant’s approach to regulation, described above, is indicative that he will not comply with licence conditions in the future.

The legal test requires the tribunal to consider whether the appellant will comply with licence conditions. The tribunal has considered a selection of the alleged contraventions of licence conditions below.

The Respondent asserts that the Appellant cannot satisfy standard conditions 2 and 4 (Paragraphs 2 & 4 of Schedule 2 to the Regulations) . The Respondent asserts that staff knowledge and training has not been properly evidenced because:

The Appellant asserts that:

In oral evidence the appellant:

Mr Moore’s oral evidence was that the appellant had produced inadequate evidence of processes and procedures. In addition, in part, the evidence of process and procedures relied upon by the Appellant had been provided after the date of the inspection and accordingly should be disregarded by the tribunal. Mr Moore referred to the notice of refusal dated 30 November 2023 . In particular paragraph 3 which provides that the day after the inspection the Appellant provided amended documentation which the appellant believed addressed the points raised at the inspection.

I find that the fact that procedures and processes were provided following the inspection but prior to the decision does not mean that they should be disregarded by the respondent or for that matter by the tribunal. The assessment required under the regulations is forward-looking. That is whether the appellant will comply with the conditions. In that regard evidence that the appellant has rectified concerns of the Respondent such that he will comply with conditions in the future is relevant to the tribunal’s determination and I have considered the material submitted by the Appellant to the Tribunal after the date of the inspection.

There is no documentary evidence before me to suggest that the appellant’s staff have completed OFQUAL level 2. There is no evidence before me to indicate that OFQUAL level 2 would provide the relevant expertise in the animals for which they will be responsible. There is no indication of the modules that they have undertaken to date, results achieved or indeed their engagement with the course.

I find that the evidence of a training policy provided by the appellant is inadequate. At page 451 the staff training record simply provides a description for example fish behaviour (disruptive) the date is completed and a signature marked on the document. There is no evidence of what the training comprised, the expertise of the trainer or the resources upon which the trainer has drawn upon to deliver the training. The staff members have signed the operators procedures but there is no indication other than the signature that they have read and understood procedures, whether those procedures have been explained to them in detail personally by a person with appropriate expertise and whether the staff have been given an opportunity to ask questions. There is no indication of the training materials that are used to train staff.

The evidence in the bundle would indicate that the staff members are providing care to the animals at the premises. In light of my findings in relation to the qualifications of the staff and the deficiencies in the training records I find that the appellant has failed to demonstrate that he will comply with paragraph 4 of Schedule 2 (general conditions) that sufficient numbers of people who are competent must be available to provide a level of care that ensures that the welfare needs of all the animals are met. In addition, for the reasons set out above I find that the evidence that the appellant has produced of a training policy is inadequate.

For all of the reasons set out above, I find that the Appellant has failed to demonstrate compliance with conditions 2 and 4 of the standard conditions. For the avoidance of doubt, I repeat that the issues considered above are merely a sample of the contraventions alleged by the Respondent.

The Respondent asserts that the losses book was an academic diary which ran until 31 July 2023. The inspection was carried out on 11 September 2023. The respondent asserts that the appellant was not aware the book was no longer being used nor whether there was a procedure for recording losses in lieu of this book. The appellant asserts that the business uses a diary to record losses and that he could only obtain a half year diary at the point in the calendar year that the diary was obtained. In addition, the appellant asserts that stock losses were minimal. The appellant asserts that the front of the unused area of the diary was used and the date written in manually. The implication being that the losses record was up to date. In oral evidence the appellant accepted that he had not produced the losses book. In oral evidence the appellant asserted that the book was available and recorded the relevant losses. The weight that I attached to the report of Kirsty Crowther in respect of the loses record is reduced because she was not at the hearing to have her evidence/the report tested under cross examination. However, that said Daniel Moore has provided evidence to confirm that the report corresponds with the records of the council and I accept that as an investigating officer she would have made contemporary and contemporaneous notes at the time of the investigation. Accordingly, I do place some weight upon the report. In contrast, the appellant has known of the respondent’s concerns in respect of the losses book for some significant period. Notwithstanding this the appellant has not produced the losses book in evidence. This can be contrasted with the appellant’s approach to other areas such as his policies and procedures where he has amended the same and produce the same to both the respondent and the tribunal. Against this background, I find that the absence of the losses book where it can be reasonably expected without reasonable explanation for its absence undermines the appellant’s assertions that losses were appropriately recorded in a losses book. Accordingly, on the evidence before me, I find that the appellant has failed to demonstrate that he adequately records losses. I find that the appellant’s failure to demonstrate that he adequately records losses is significant as any regulator can legitimately expect to see these figures as these records are potentially relevant to the welfare of animals in the care of the operator.

The respondent asserts that the register of animals was inadequate. Stock numbers were not known and accordingly mortality rates in a 24 hour period could not be calculated. The appellant’s position is that, whilst it is difficult to count fish numbers (small and highly mobile), it is possible to stock-take as stock is recorded with incoming invoices and losses are also recorded. As such is simply a matter of arithmetic to provide stock numbers. The tribunal asked why this was not carried out and recorded. The appellant stated that it could be done in the future. There are instances throughout the bundle where the appellant states that he considers that the regulatory regime as applied by the respondent to be disproportionate to small business owners, he considers regulatory points taken by the respondent either to be unnecessary or to be picky. I find that the appellant’s approach is indicative that where he considers the regulatory requirements to be unnecessary or disproportionate to his business he will ignore such requirements. Accordingly, on this basis I place little weight upon the appellant’s assertion that stock-take will be conducted in the future. I find that this is significant because stock take is part of the process through which mortality rates can be calculated which again is important to the regulation of animal welfare.

The respondent notes the Appellant’s procedures for cleaning rocks and decor with 25 mL of Domestos within 10 L of warm water. The respondent asserts that there is no evidence of the efficacy of this dilution rate. The appellant has responded stating that he doesn’t “see the problem”. Domestos does not have any detrimental additives, has been used in the trade for years, the dilution rate is known to the appellant has been proven to work and “there doesn’t need to be a book written on it. More pedantic behaviour by the investigating officer”. Contrary to what is said by the appellant it is for the appellant to demonstrate his processes and procedures are not harmful to the welfare of the animals . Whilst I accept that the concentration is very low when considered against the dilution rate, it is for the appellant to demonstrate that his processes and procedures will maintain the welfare of the animals. The appellant’s approach that he has been in the trade for many years and so the regulator must take his word that this process and procedure is acceptable is insufficient. The appellant must either demonstrate these practices and procedures are recognised by the industry or alternatively adopt processes that are so recognised. Against this background the appellant has failed to demonstrate that he has appropriate procedures in place for cleaning items which form part of the animal’s environment.

The Respondent asserts that in relation to terrapins the information was a general summary of their feeding needs rather than specific details of their feeding regime. In addition, the feeding procedure for axolotl aquatic frog referred to frozen bloodworm. The OATTA recommended larger items such as prawns, mussels and cockles supplemented by specialist prepared pellets. Accordingly, the inspector was not satisfied that the axolotl was receiving a balanced diet. The appellant’s response to terrapins is that “staff are credited with a certain amount of common sense. The procedures determine what the turtles eat and staff will feed accordingly”. I find that the procedure is deficient. In respect of terrapins, whilst the procedures identified diet they do not include any information as to the frequency or quantity of feeding. I do not accept appellant’s assertion that this could simply be determined by staff applying their common sense, specialist expertise is required. In respect of axolotl the appellant acknowledges that larger animals are fed larger food items. The appellant states that they do not have larger animals often but acknowledges that he will amend the procedures and processes document to include a feeding regime. The appellant stated that he considered this to be a minor detail. I find that the process and procedures in relation to terrapins and axolotl are deficient. I do not agree with the appellant that these elements are minor detail. The type of food, frequency of feeding and quantity of feeding in relation to animals is at the core of their welfare.

For all of the reasons set out above, I find that the Appellant has failed to demonstrate compliance with condition 9 of the standard conditions. For the avoidance of doubt, I repeat that the issues considered above are merely a sample of the contraventions alleged by the Respondent.

The respondent has produced statutory guidance titled “selling animals as pets licensing: statutory guidance for local authorities”. The guidance provides, amongst other things, “where applicable a minimum of two hides or sheltered areas must be provided and located in different areas of the thermal gradient)”. Species requiring UV lighting must have appropriate UVB emitting lamps manufactured for use with reptiles and amphibians. Upon installation of a new lamp a UV metre must be used to ensure adequate and appropriate UVB levels are provided at a level that the animal is located. Animals must have access to areas of shade so they can escape from the light if desired . In addition, whilst in relation to ambient and basking temperatures the guidance states “licence holders and staff must have access to relevant credible reference material for normal environmental parameters “.

The respondent asserts that there was no adequate hide for the axolotl. The appellant states “that’s rubbish”. “Axolotl do not need holes and caves to hide. I built a tank with an overhang and without a light above the tank. That was more than adequate as a hiding/shelter place. Whilst the inspector was there I placed a large piece of black piping in the tank and the axolotl would not go near it. I took it out a week later.”. The appellant goes on to state that in relation to the terrapins he uses a new UV bulb and basking lamp and the turtles are only in stock for a few months of the year and manufacturers recommend changing the bulbs after six months use as they deteriorate.

On the evidence before me I find that the guidance recommends hides for amphibians which will include axolotl. If axolotl are a special case where hides are not required it is for the appellant to produce reference material from reputable sources to support this. Mere assertion is insufficient.

In addition, guidance requires that UV levels are appropriate at the level that the animal is located and that hides are required. The appellant states that turtles don’t require hides as they have shells for protection. However, if that is indeed the case then, again, it is for the appellant to provide appropriate reference material from reputable sources which he has not. In addition, the Appellant accepted that he did not have a UV meter.

The guidance requires that systems must be in place to allow assessment of a range of temperatures over a 24-hour period. The guidance states that this can be done using a maximum/minimum thermometer. There is no evidence to suggest that the appellant has any capability to record maximum and minimum temperatures over a 24 hour period. The appellant accepts that axolotl were kept at room temperature so they may become too hot in the summer but if this happens they will be kept in the cold room. However, the appellant has provided no evidence to suggest how room temperature would be monitored throughout the day and the appellant accepted that on the day of inspection the room temperature was at 23° which is over the recommended temperature range for axolotl and yet the axolotl had not been moved to the cold room.

The respondent asserts that the netting present for the pond tanks to prevent fish jumping from the tank was not in use at the time of inspection. The respondent asserts that when the appellant was asked about the nets the appellant stated he did not know why they were not in place and proceeded to cover the tanks. The appellant in his reply to the response states that the tanks are covered when the shop is closed and rolled back when the shop is open. In the daytime if the fish would jump out the staff would see it and would put the fish back. Under cross examination the appellant again confirmed that netting would be unrolled in the daytime but covered at night time. The appellant was asked what would happen if a fish should jump out . The appellant stated that this would be seen and would be a rare event. The appellant was asked how long a fish would remain out of the water once it jumped out of the tank. The appellant stated that this would be seen immediately and the fish would be replaced. The appellant, when pressed confirmed that the fish would be replaced within minutes. I find that the appellant’s practice of removing coverings in the day is such that there is the potential for fish to jump from the tank such that it cannot be said that the areas to which the animals have access present a minimal risk of escape.

For all of the reasons set out above, I find that the Appellant has failed to demonstrate compliance with condition 5 of the standard conditions. For the avoidance of doubt, I repeat that the above is merely a sample of the contraventions alleged by the Respondent.

On the basis of my findings above the Appellant has failed to demonstrate that he will meet licence conditions as per Regulation 4. I accept that the appellant has been issued similar licences by other local authorities. I accept that this weighs in favour of the appellant’s assertion that he will comply with licence conditions. However, for the reasons set out above, the weight that I afford to the issue of these licences as corroborative evidence of the appellant’s ability to comply with conditions is reduced. For the reasons set out above, I have found against the appellant’s assertion that the local authority should provide further advice and assistance which would enable him to comply with licence conditions. I have found that the appellant has been given significant advice and guidance across two reports and a decision and reasons of the Tribunal. Despite this significant advice and assistance, the appellant is still unable to demonstrate that his operation complies with conditions 2, 4, 5 and 9. In addition, I have found that the appellant’s approach to regulation is indicative that he will not comply with regulations in the future. For these reasons I find, on the balance of probabilities, that the Appellant has failed to demonstrate that he will meet licence conditions as per Regulation 4 of the Regulations and for all these reasons the appeal is dismissed.