High Court upholds Public Spaces Protection Order on multiple dog walking

20 Apr 2018

Housing, Public Law and Judicial Review

The High Court has dismissed a challenge to the London Borough of Richmond upon Thames’ prohibition, contained in its Public Spaces Protection Order 2017 (Dog Control), on the walking of more than four dogs together in Richmond except where the walker has secured a license from the Council to walk up to six dogs, or has permission from the land-owner. In so doing, the High Court has provided valuable guidance to local authorities as to the test to be applied when making a PSPO and as to the standpoint of the Court where an individual seeks to challenge it.

The Applicant was a resident of Richmond. Supported by the Kennel Club, she brought proceedings challenging Richmond’s PSPO on dog control in three respects relying, in total, on 17 grounds only two of which were successful.

Section 59 of the Anti-social Behaviour, Crime and Policing Act 2014 gives power to a local authority to make a PSPO if satisfied on reasonable grounds that two conditions are met. The first condition is that “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 it is likely that activities will be carried on in a public place within that area and that they will have such an effect”. 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”.

Section 66 of the Act entitles an “interested person” (defined as “an individual who lives in the restricted area or who regularly works in or visits that area”) to apply to the High Court to question the validity of a PSPO on grounds that the local authority did not have power to make it, or to include particular prohibitions or requirements imposed by the order, or that a requirement of the Act was not complied with.

In the first challenge of its kind to come before the High Court, May J held, agreeing with Richmond’s submissions:

(a) that “those in the locality” must be construed as meaning some, but not necessarily all, of those within the locality, whether as residents, visitors or workers [24];

(b) applying Ramblers’ Association v Coventry CC [2008] EWHC 796, that “persistent” was an ordinary English word “commonly understood to mean ‘continuing or recurring, prolonged'” [27]

(c) that there is a degree of overlap between the two conditions set out in section 59 such that evidence of one condition may be relied upon to support the other [28].

On the important question of the court’s standpoint on a challenge under section 66, May L accepted Richmond’s submission that the test to be applied is the ordinary Wednesbury standard of review as expounded by Lord Lowrie in R v Home Secretary ex p. Brind [1991] 1 AC 696 at 765H, namely “Could a decision maker acting reasonably have reached this decision?” May J rejected the Applicant’s contention that, as the breach of a PSPO carries criminal sanctions, the “highest level of anxious scrutiny” should be applied by the court. [35]

More fundamentally, May J emphasised the degree of deference to be given to the local authority when she said this:

“The Act therefore envisages use of PSPOs to curb activities which it is possible that not everyone would view as detrimentally affecting their quality of life. Taken together with the absence of any further definition of the key terms ‘activities’ or ‘detrimental’ this strongly points to local authorities being given a wide discretion to decide what behaviours are troublesome and require to be addressed within their local area. This requires local knowledge, taking into account conditions on the ground, exercising judgment (i) about what activities need to be covered by a PSPO and (ii) what prohibitions or restrictions are appropriate for inclusion in the order. There may be strong feelings locally about whether any particular activity does or does not have a detrimental effect, in such cases a local authority will need to weigh up competing interests. Deciding whether, and if so what, controls on certain behaviours or activities may be necessary within the area covered by a local authority is thus the very essence of local politics.” (emphases added) [25]

On the evidence, May J “reached the firm conclusion that Richmond’s decision to impose a four-dog limit (with conditions as to licenses, and a review after a year) was reasonable” [61]. May J further dismissed a challenge to a requirement in the PSPO requiring “dogs to be kept under proper control” though she quashed two sub-limbs thereof largely on the basis that the activities they sought to curtail were otherwise covered by the “proper control” requirement within the PSPO.

May J further ejected the Applicant’s contention that the PSPO was discriminatory under section 15 of the Equality Act 2010, holding that challenges of direct or indirect discrimination should be brought instead in the county court pursuant to section 113 and 114 of that Act [87].

You can read the judgment here

Kelvin Rutledge QC and Kuljit Bhogal represented LB Richmond.