Rebecca Latter v Barnsley Metropolitan Borough Council

gives birth to more than one litter of puppies in a 12-month period;

The appeal took place by video and was attended by Counsel for the Appellant, instructing solicitors for the Appellant and a claims handler on behalf of the Appellant’s insurer. Counsel for the Respondent attended along with Jake Taylor - Regulatory Services Field Officer, Gareth Harris - Regulatory Services Field Officer, Christina Heeley - Service Manager Trading Standards and Rachel Wilkinson- Head of Regulatory Services.

The Tribunal heard oral submissions from both Counsel, oral evidence from the Appellant and witnesses, Jake Taylor and Christina Heeley. The Tribunal had the benefit of an agreed bundle of 522 pages and a skeleton argument from the Appellant. All oral and written evidence was considered, whether or not specifically referred to in this decision.

The Appellant appealed on the basis that she had received a lack of advice from the Respondent and apart from these 2 incidents, has an exemplary record and received positive reviews in inspections including the separation of the two sexes. To remove the males from her property would cause significant financial loss and would impact the breeding programme as an unknown male stud brought on to the premises may carry the ‘blue gene’ which can cause complications in Shih Tzu mating.

The Respondent submitted that although the structure of the Appellant’s premises could have ensured effective segregation of male and female dogs at critical times, it was the day-to-day management of those areas that appears attributable to the unwanted pregnancies. The Legislation prescribes that the legal duty to ensure there is 12 months clear between litters falls on the Appellant as Licence Holder, and it would have been for the Appellant to put whatever practical steps were required in place. The Appellant knows both her dogs and her home environment better than anyone else could. The decision to offer the Appellant a variation of her Animal Activity Licence from 1 January 2025 that entire (unneutered) male dogs should no longer reside on the licenced premises still stands. This decision being made on welfare grounds for the protection of unneutered female dogs and puppies within the Appellant’s breeding programme. This decision has been made as an alternative to a formal prosecution, a penalty notice being issued and/or the revocation of the licence.

There is no dispute that the Respondent had followed the correct process and had the power to impose the licence restriction. Therefore, the only issue for the Tribunal to determine was whether the Respondent had acted proportionately in imposing the restriction and whether it was reasonable in all of the circumstances. As confirmed by both Counsel at the hearing the Tribunal has the power to confirm the decision of the Respondent, allow the appeal and grant the licence without restrictions, or substitute its own decision with whatever alternative restrictions, the Tribunal deemed appropriate.

The Appellant had submitted a proposed restriction which stated that she would not derogate her responsibility for ensuring that male and female dogs were kept separated when the female dogs were in season and that the male dogs would be chemically castrated. At the hearing it was confirmed that this was not a long-term solution as the male dogs could not be chemically castrated indefinitely. A further proposed restriction was drafted and shared at the hearing which was rejected by the Respondent. For the reasons given below the Tribunal did not consider that the proposed restrictions were workable, however, no restrictions on the licence were necessary, on the renewal of the Appellant’s licence.

The Tribunal did not consider that some of the issues raised were material to the issue of whether the licence should be renewed with the restrictions imposed by the Respondent. It was accepted by the Appellant at the hearing that the onus is on the licence holder only to ensure that the correct standards were met, and it was not a defence to suggest that she had not received a sufficient level of advice and guidance from the Respondent.

The Tribunal did not accept, as suggested at the hearing, that the Appellant had a disregard for the Regulations and her attitude toward the Regulations was not sufficient. All written and oral evidence suggests that the Appellant understands the need for the Regulations and a dedication to following them, regardless of any personal opinion. Whilst she had mated her female dogs in quick succession before becoming licenced in 2016, she had not deliberately done this since becoming licenced and had a period of 8 years without incident. All inspections reports provided and witness evidence indicates a high regard for animal welfare, apart from the 2 incidents which led to the decision under appeal.

We did not consider that the reference to the ‘blue gene’ or the financial burden to the Appellant as a relevant consideration for our decision, as the purpose of the Regulations is to protect animal welfare and there are viable solutions to the Appellant if intact male dogs are not kept at the residence.

The Appellant explained that the 1^st incident arose because she was looking after an unfamiliar male dog that jumped the barrier that her own dogs could not. After this accidental mating she was not issued with a warning and she would never look after other male dogs in the home again to prevent this happening again. The 2^nd incident arose when someone else was looking after her dogs due to unforeseen personal circumstances, they did not ensure adequate separation which resulted in the accidental mating. She self-reported on both these incidents.

Jake Taylor explained on behalf of the Respondent that after the 2^nd accidental mating they sought advice from a Vet as they are more experienced and can provide expert advice. The Respondent relied on the veterinary advice in imposing the restrictions which was a lesser option than refusing the licence or imposing a penalty in recognition of the Appellant’s good standards, apart from the 2 incidents. The veterinary advice was not provided in the bundle, but a copy was subsequently provided to the Appellant and the Tribunal at the hearing, at the Tribunal’s request. The Appellant raised that the veterinary advice had not been shared with her during the decision making or Tribunal process. The Tribunal considered that the veterinary advice was not as described in the written or oral evidence to the Tribunal. It did indicated that a further warning was not appropriate, however, as confirmed at the hearing, there had been no previous warning and that the reference to a previous written warning was a mistake. The Vet actually advised that the Appellant would need to present a plan of how she intends to prevent this welfare problem from recurring. It may require a further inspection at her expense to ensure compliance is practical and likely to be effective. The advice to vary the licence to refuse to allow entire males to be kept on the premises was only advised, if the situation repeats.

The Appellant was not given an opportunity to present a plan and the Respondent went on to vary the licence without further input from the Appellant. Whilst the Tribunal accepts that it is the Respondent who is decision maker and can choose whether to follow the expert advice given, much weight was given in the evidence that the Vet had advised the course of action taken as the expert and the Respondent had no option but to follow it.

Having considered all of the evidence, the Tribunal finds that the Appellant has a consistent approach to animal welfare and the incidents were isolated and exceptional in nature and the Appellant has put forward reasonable proposals as how to mitigate this in the future. She will no longer look after unfamiliar male dogs on the premises and will need to find arrangements for the entire males if she is not going to be at the property. The Tribunal considers that it is highly unlikely the Appellant will allow the situation to repeat, on the evidence submitted to the Tribunal.

Whilst the Respondent submitted there was no choice but to impose the restrictions to protect the welfare of the animals and this had been recommended by veterinary advice, the Tribunal finds that this was not proportionate and reasonable in all of the circumstances. The Appellant’s day to day management of the premises was in accordance with the Regulations, for the majority of the time and the 2 incidents were exceptional incidents. The Appellant has had 8 years without incident and received good feedback from both the Respondent and customers. The Appellant through the appeal process has put forward a plan of how she intends to prevent this welfare problem from recurring as requested in the veterinary advice.

If the situation were to repeat, then at that stage, the appropriate course of action would be to either remove the licence or impose the restriction to vary the licence to not include entire males at the premises, in accordance with the veterinary advice received by the Respondent. The Tribunal is following and implementing the veterinary advice in this decision, which was purported to be done by the Respondent in making the decision.

Therefore, the Tribunal allows the appeal and finds that the licence should be renewed without the restrictions imposed by the Respondent.