Planning and Noise

With over 15-years’ experience in local authority licensing and prosecutions, barrister, Malcolm Hope, answers your questions:


Q: The council’s planning department has told me I can only have 5 dogs but I have a licence from the same council that says I can board 8 dogs. Can planning overrule licensing like that and am I allowed to board 5 dogs or 8?

The short answer is that the number of dogs you can board is the lower of the two numbers. In your case, that means you can board 5 dogs. This is something that causes a lot of confusion across many types of licence, from pubs and clubs to doggy day cares and home boarders. You apply for a licence and the council grants it, allowing you to board a certain number of dogs or allowing your day care to be open certain hours, but the planning department then tells you something different. They are both looking at the same business, taking place at the same premises, so why do they often come to such different conclusions and what does it mean for you as a licence holder? It is like one of those optical illusions where one person will see a candlestick and another will see two faces. This is what happens when the council’s licensing and planning departments assess your premises – they see different things because they are focussing on different aspects. Licensing are considering the Animal Welfare (Licensing of Activities Involving Animals) Regulations 2018 and, as its title suggests, they focus on the welfare of the animals. The council’s inspector and licensing department assess the suitability of the premises, and the activity carried out, with an eye very firmly on the key issues of animal welfare, often termed ‘the five freedoms’ – the need for a suitable environment, for a suitable diet, to exhibit normal behaviour patterns, to be housed with, or apart, from other animals and to be protected from pain, suffering, injury and disease. They assess your ability to meet those needs and to comply with the licence conditions, as all licences under the 2018 Regulations include conditions relating to those five headings. On the other hand, the council’s planning department is looking at the character of the area, the use of the land and whether that use negatively impacts the amenity of the locality. Your house will have permission for use as your home. Keeping dogs can, of course, be incidental to using that house as a dwelling – our dogs are a part of our families, after all. However, the more dogs that are kept at the house, the more the use is about housing the dogs, rather than about being a home. Eventually, the use for the dogs could outweigh the use as a dwelling and, in planning terms, there could be a material change of use requiring planning permission. Of course, when home boarding, the dogs are not all a part of the usual household, but are there for business reasons. Using your home for business does not automatically mean there has been a material change of use – much of the country is working from home because of the coronavirus pandemic and can do so without it amounting to a material change of use. So, what does the law say on this? Planning legislation does not set a maximum number of dogs that would be incidental to use as a dwelling. However, many council planning departments use a ‘rule of thumb’ that 6 or more dogs amounts to a material change of use. This has its origins in the case of Wallington v Secretary of State for Wales and Montgomeryshire District Council (1991) 62 P. 7 C.R. 150. Doctor Wallington kept 44 dogs at her home. The council served an enforcement notice, alleging a material change of use and requiring her to reduce the number of dogs to 6. She appealed the notice on the basis that the dogs were not kept for commercial purposes and that keeping them was incidental to the normal enjoyment (i.e. the use) of the house as a dwelling. The Court of Appeal held that what was incidental was a question of fact and degree, to be assessed objectively. 44 dogs were found to be excessive and the appeal, therefore, failed. Although the Court did accept that any limit imposed would be arbitrary, it went of to say that even 6 dogs “would exceed the number normally kept in domestic circumstances…” Although this comment was not an essential part of the legal decision in the case and, therefore, not legally binding in itself, council planners have often use it as a benchmark, with up to 5 dogs being incidental and 6 or more deemed a material change of use. To add to the confusion, some councils take the view that up to 6 dogs are incidental and that 7 or more is a material change of use (probably because 6 dogs were actually permitted by the notice in the Wallington case). So, that is why planning departments set these limited numbers of dogs. However, the bottom line is that these are arbitrary figures. Houses and neighbourhoods vary, so although 5 dogs may well be right for some homes, it may not be for others. It could be more or it could be less. If you come up against this problem, the way forward is to talk to the planning department and, if you think they are wrong, explain why. The fact that your licence allows more does not automatically prove your point, but it is relevant. Think in terms of odour, noise and other things that could negatively affect the amenity of the locality and talk about what could be done to address it, as those are the types of issue that the planners will be looking at. If you are running a day-care too, you may well have fewer dogs at noise-sensitive times, which the planners should take into consideration. If the planning department remain adamant that there has been a material change of use, you can discuss with them an application for planning permission to increase the limit. The planning system is ‘front loaded’, meaning you can seek pre-application advice (although some councils do charge a fee for this) to understand what the planning issues would be, what steps may be required of you to justify the grant of planning permission and, although they cannot say for certain, they may be able to give you an indication of the likely outcome. Planning is a complicated area so, when in doubt, seek legal advice.


Q: I have received a noise complaint from the council and am worried I will be fined or end up out of business. Please help!

This is a problem that comes up a lot when home boarding. Dogs make noise, neighbours complain and the council’s Environmental Health team have to investigate whether there is a statutory nuisance. In law, there is no right to absolute peace and quiet; to live together as a society we are all expected to allow for some disturbance from the others around us. An occasionally barking dog is not going to amount to a statutory nuisance, but half a dozen barking all night certainly could. Once again, it is a question of fact and degree, taking into account things like the duration of the noise, the time of day (11pm to 7am is often considered to be a noise sensitive time when it is reasonable to expect less noise), the character of the neighbourhood (more noise could be tolerable in a city centre street than in a sleepy suburb) and the harm being suffered because of the noise. If there is a complaint of noise nuisance, the council are obliged to take such steps as are practicable to investigate the complaint. The form that investigation takes can vary. They will gather evidence, which will usually include asking the neighbour to keep a log of the disturbance. Some councils will install a noise recorder at the complainant’s property, but more commonly now, complainants are asked to download the Noise App onto their smartphone and record the disturbances with that. Environmental Health officers may also come out to measure decibel levels from the complainant’s home. If the council decides there is a statutory nuisance, it can take a more informal route, by taking such steps as it considers appropriate for the purpose of persuading the person responsible to stop the nuisance occurring or recurring, but, if that does not resolve things, or if they decide it isn’t appropriate, then, by law, they must serve an abatement notice. This is a formal notice setting out what the nuisance is and demanding it is stopped and prevented from recurring. The notice can specify works to be executed to address the noise problem and must specify a period of time for compliance. Failure to comply with an abatement notice, without reasonable excuse, is a criminal offence and could result in prosecution before the Magistrates’ Court. If convicted, it carries an unlimited fine (i.e. there is no maximum; the court will set the figure based upon their finding of the seriousness of the offence, any aggravating or mitigating factors and your income and relevant expenditure) and there can be a further fine for each day that breach continues after conviction. Of course, one of the best things you can do is to get a dialogue going with your neighbours so that, if they are being disturbed, they feel they can come to you before they think about complaining to the council. However, if things have gone beyond that, then there is a specific defence to breach of abatement notice that is worth knowing about long before there is even a noise complaint, as it could help you to avoid being served with an abatement notice in the first place BEST PRACTICABLE MEANS This defence is limited to nuisance arising at industrial, trade or business premises. As a home boarder, you have been assessed for your licence under the business test in the statutory guidance and so, even though it is happening in your home, it is also the premises of your business, so the defence should be available to you. Where a person contravenes or fails to comply with an abatement notice, it is a defence for them to prove that best practicable means were used to prevent, or to counteract the effects of, the nuisance. What does best practicable means actually mean? Well, for once, this means what it says: that you have used the best means available to you to address the noise from the dogs. This does not mean you have to silence the dogs, but you do need to have done as much as is reasonably practicable to mitigate the noise disturbance they could cause. What is practicable depends on a number of factors, like local conditions and circumstances (noise can carry further in one area than another and the level of background noise also differs, meaning the same noise may be more noticeable in one place than it would in another) and the financial implications of the measures you can take (you cannot be expected to spend money you truly cannot afford to deal with the problem, but you should take all cost-effective steps). In practice, you need to ask yourself a few questions: Can they be heard outside? If so, where does the noise escape from? Is there a way you can reduce that? Does the noise escape more from a particular room? If so, would swapping the noisiest dogs to a different room help? Is there some sound insulation you could instal, like acoustic curtains or other sound attenuation? Which of your neighbours are likely to hear the noise? Is there a way to lessen the sound reaching their homes? Are you on good enough terms to ask them if they are being disturbed and perhaps even check out what can be heard from their home? Are there particular times when the barking is more of a disturbance, because the dogs are louder or the background noise is less or something else that usually helps reduce the noise isn’t doing as good a job? What can be done at those particular times? Is there an activity or a change of routine that could help? What else could help? In court, it would be for you to prove that you used best practicable means, so keep records of when and how you investigate the noise, what you discovered, what measures you have come up with to address it and how you have assessed their effectiveness. Keep it under regular review by scheduling checks in your diary and always ask yourself whether you are doing enough. By starting to take these steps now, you can go a long way to protecting yourself from a noise complaint. Not only is best practicable means a defence to a prosecution, it is also one of the grounds to appeal against an abatement notice and, if you can prove it to the court, the notice can be quashed. This is something that the council knows, so, even though they should serve an abatement notice whenever they find a statutory nuisance, if you can already show them that you have used best practicable means, this could persuade them not to serve a notice at all – after all, what would be the point of the notice if you have already done all that is reasonably practicable?! If you do receive an abatement notice, you have 21 days to lodge an appeal. If successful and the notice is quashed, then the risk of a hefty fine and a criminal record for breach is no longer hanging over your head and those records of how you have mitigated the noise could be your best weapon. However, as always, I would recommend you put that weapon in the hands of an expert by seeking legal advice. DISCLAIMER: The information and opinion contained herein is set out for general information purposes only and does not constitute legal (nor other professional) advice and should not be relied upon, nor treated as a substitute for, specific advice relevant to particular circumstances. Providing this information does not create a lawyer-client relationship. Neither Malcolm Hope, nor the Association of Dog Boarders, will be liable for any losses incurred by relying on the information contained herein. We always recommend that you seek legal advice and representation from a suitable qualified professional on any specific matter. If you require legal advice, assistance or representation, Malcolm Hope may be able to assist. To instruct Malcolm on a matter, or enquire about fees, you can contact his clerks at:

Dog Home Boarding and Day Care: Do I Need a Licence if I Earn Under £1000?

The £1000 trading allowance explained..

Association of Dog Boarders investigates…

In the DEFRA document ‘Guidance notes for conditions for providing home boarding for dogs’ November 2018 there is a caveat allowing people who earn less than £1000 per year in trading income to home board dogs without needing a licence. The details surrounding this statement are causing some debate within the home boarding community, so this guide is to help home boarders understand its context.

DEFRA say:

“The local authority inspectors should take into account all of the elements and weigh them against each other before reaching a decision as to whether an activity falls within the scope of the regulations.”

This means that your local authority makes the final decision regarding whether you need a licence or not. It is not up to you, and taking advice from those on social media could lead you down the wrong path. Regardless of your total earnings and income from any source, you should contact your local authority to be sure of their position regarding licence requirements in your local borough.

DEFRA say:

“The regulations specify two example business tests to be considered when determining whether an activity is considered as ‘commercial’ and thus within scope.”

The local authority will take the guidance into consideration when deciding if an individual home boarder needs a licence, but the ultimate determination is left to them. The information is ‘to be considered’ and is not statutory.

DEFRA say:

In scope

Question: Does the operator conduct the activity in order to make a profit?

Question: Does the operator earn any commission from the activity?

Question: Does the operator earn a fee for the activity?

Those who provide accommodation for other people’s dogs where the provision of the accommodation is entirely or partially the purpose of the business.

Those who arrange the provision of accommodation services but do not provide the services themselves.

Businesses providing accommodation for dogs in a domestic home environment.

Not in scope

Businesses who provide services where boarding is consequential and not the actual purpose (such as a vet).

Businesses offering boarding outside of a domestic home environment are out of scope for a home boarding licence but will need a commercial day care or kennels licence.

Businesses who look after the dogs in the owner’s own home.

The Government announced in Budget 2016 a new allowance of £1,000 for trading income from April 2017. Anyone falling under this threshold would not need to be considered in the context of determining whether they are a business.

These are considerations, they are not definitive. The decision regarding whether you require a home boarding licence or not falls with your local authority. The decision can be made by an inspector or a licence officer.


The £1000 that is being referred to is your tax-free allowance for property or trading income, which begins each year on 1st April.

Trading income is separate to any income that you earn from being employed, receiving a pension or claiming benefits. It is an allowance that is available for people who are earning an income through self-employed status and through their hobbies (known as ‘casual earnings’). Everyone, whether self-employed or employed or receiving a pension or benefits has this allowance.

Self-employed people must add together all their annual earnings from any channel (including casual earnings) and remain under the £1000 threshold to utilize this allowance. There are also restrictions on using the trading income allowance if you own your own business or are connected to a company or partnership.

Those employed, receiving pensions or benefits (assuming that they are not also self-employed) must add together all their casual earnings and remain under the £1000 threshold to utilize this allowance.

Trading income is about INCOME, TURNOVER or EARNINGS. If you wish to deduct your expenses from your gross income, you cannot use the trading income allowance. If you wish to deduct your expenses or costs from your income, the trading allowance is not applicable and you must report your earnings to HMRC in the usual manner.

The £1000 referred to in the DEFRA guidance document is this allowance.

– If you are not eligible for this allowance, then you need a home boarding licence.

– If your self-employed total earnings exceed £1000 for any type of work, you need a home boarding licence.

– If your casual earnings through any channel exceed £1000, you need a home boarding licence.

– If you self-employed earnings plus your casual earnings exceed £1000, you need a home boarding licence.


Janet is retired. She earns £700 a year from home boarding and sells home made peg bags at the Sunday market, usually making around £400 a year. Her total trading income is £1100. Janet needs a home boarding licence unless her local authority tells her otherwise.

Susan works part time in a school and home boards during the school holidays. She earns £9,000 from her employer, and £950 a year from home boarding. Susan does not need a home boarding licence unless her local authority tells her otherwise.

Kathy is a self-employed dog walker that also boards 2 of her client’s dogs as they are not good in kennels. She earns £12000 a year from her dog walking business, but only £450 from boarding the dogs. Kathy’s total trading income is £12450 a year. As Kathy owns her own company, she is not entitled to the trading income allowance – so she needs a home boarding licence unless her local authority tells her otherwise.

David takes home boarding dogs through an online agency. The agency pays him when the owners book in, but he is classed as self-employed. David also does a bit of gardening in the local area (he doesn’t advertise), and he buys and sells coins on eBay as a hobby. All of David’s income from the home boarding, the coin collecting, and the gardening must be totalled together to class as his trading income. As his total earning before expenses is £1300, David needs a home boarding licence unless his local authority tells him otherwise.


It is more likely than not that once you add up all of your self-employed earnings and your casual earnings, you will need a home boarding licence. The trading income allowance is not based on profit – it is based on total earnings from all types of casual earning and self-employed income.

And ultimately, right now it is up to your Local Authority. Do not take advice from others on social media or through online agency services, as if you trade without home boarding licence and your local authority deemed that you should have one, the fine cannot be waived due to what others have told you. It is your responsibility to check if you need a home boarding licence in your borough, and it is easy to check.

When you have carefully considered your earnings and are clear on what you earn, contact the licence department in your local authority and ask them to confirm that you have correctly assessed their requirements. MAKE SURE THAT YOU HAVE THEIR DECISION IN WRITING, as this will help if the personnel in the licence office change and the new staff have a different view on the requirements for home boarding licences.

For further information, contact us at the Association of Dog Boarders at:

Written in conjunction with Waggy Walks 4 Dogs Pet Business Support


Home Boarding Guidance November 2018

What is home boarding for dogs?

Top Tips for Home Boarding Your New Dog

Your new puppy has arrived, and you suddenly realise that in a couple of months, you have a holiday booked!  What do you do?  You could take your puppy to kennels, but there is an alternative service available, home boarding.  Home boarding offers your dog the opportunity to stay with a boarder in their own home. Your dog is treated as one of the family.  Home boarders require a licence from their local authority in order to offer home boarding or day care services from their property.

You can find a list of licenced home boarders on your Local Authority’s website, or you can call and ask for information.  The Association of Home Boarders also has a list of licenced home boarders in their Members Directory.

Top Tip 

Make your arrangements as soon as possible!  Home boarders become fully booked for peak periods very early in the year.  By March, a large percentage of the August home boarding spaces have already been taken.   

How does it work? 

Once you find a home boarder that has availability, you will be asked to attend a meet and greet.  This will be at the home boarder’s house, or you may be asked to meet for a walk first.  You should be invited to see the property and bring your dog with you.  You may be asked to provide evidence of your dog’s vaccinations before the meeting is booked.  The meet and greet lasts around 45 minutes and give you an opportunity to see the house, meet any resident dogs and to ask any questions that you might have. 

Questions to ask at the Meet and Greet 

  • Can I see your licence and insurance? 
  • How many dogs are you licenced to board? 
  • What is your daily routine? 
  • How many dogs do you walk together? 
  • Where do you walk? 
  • Can my dog go off-lead? 
  • Where will my dog sleep? 
  • Are you canine first aid trained? 
  • What happens if my dog becomes unwell? 
  • What happens if there is a problem with my dog? 
  • What do I need to bring for my dog? 

Bear in mind that there are no right or wrong answers, each home boarder will run their business slightly differently but these questions will give you a good starting point, and will be handy if you are going to compare more than one home boarder before making a decision. 

Do not feel pressured to use a home boarder if you do not get a good feeling at the meeting!  At the beginning of the relationship you will not feel like you know your home boarder very well, and yet you are leaving a valued member of your family in their care.  It is important that you feel that it is the right home boarder for you.  Home boarders are professionals, and do not take it personally if you do not wish to continue after the meet and greet – but it is  courteous to let the home boarder know if you are not going to use their service so that they can offer the dates to other clients.  You do not need to give reasons but do let them know that you are continuing with your search.  Good home boarders will help you by suggesting other licenced professionals in the area that might be a better fit. 

What happens next? 

You will also be asked to register your dog with the home boarder if you have not done so already. 

You will be asked to book your dog in for a trial or assessment which will be reflective of the service that you require.  If you are booking overnight boarding for a holiday, your dog is likely to be required to do an overnight trial to make sure that they are a good fit with the other guests and resident dogs and are not too unhappy when you leave them.  The home boarder is required to monitor your dog during the trial and will give you feedback at the end as to their suitability for home boarding.   

When your dog passes their trial, you will be able to make a formal booking for your holiday.  Most home boarders will ask you to pay a deposit in order to secure the dates that you require for your dog.   

Things to Consider When Using a Home Boarder 

Puppies need time and practice with their home boarder!  Young dogs go through various stages of development including ‘fear phases’ where they re-assess everything they have already learned, and decide for themselves if situations and scenarios are ‘scary’.  It is important to let your puppy meet your chosen home boarder as many times as is necessary to ensure that your puppy does not decide that boarding is ‘scary’.   

You need to tell your vet to add your home boarder to your dog’s veterinary records, so that they can make medical decisions if you are not contactable while you are away.  You can also add an emergency contact to your vet records (a trusted friend or relative) to help the home boarder make decisions.  You must tell your vet formally about this arrangement or any treatment for your dog will be delayed while the vet tries to get in contact with you.  

Dogs act differently in a multi-dog environment.  Your dog is used to having no competition for resources such as food and toys, and they also are not used to sharing their beds and blankets.  This is why the assessment is important, and it is also why you may be surprised at some of the behaviour that your home boarder reports to you!  Home boarders are experienced in managing dogs that behave a little differently to when they are at home, so unexpected behaviour does not always mean that your dog cannot stay. 

A dog’s learning and comfort is situational, which means that just because your dog is happy staying with one home boarder, they may not be happy staying with another.  If you need to change home boarders, expect to go through the trial period again, and if the home boarder tells you that your dog is not happy or not settling, it may well be true!  Just as we do not get along with everyone we meet in life, dogs have the same outlook.  Home boarders rarely take it personally if a dog just can’t settle in their home environment, and good home boarders will refer you to a trusted colleague who may have an environment that is better suited to your dog.   

You cannot bring too many blankets and towels.  As well as being a comfortable place to sit or lie, even freshly washed blankets bring all the smells from home that help a dog to settle.  If a dog is unsure or a little unsettled in the first few days of boarding, they will naturally find the smell of home from their bed and blankets comforting and will consider the area where their bed is positioned as a ‘safe place’.  This is also why dogs that sleep on the owner’s bed are less inclined to do so with their home boarder.  To the dog, your bed smells of you and this is what they need.  The dog is better to have things with them that smell of you to sleep with – as the home boarder’s bed will smell totally different. 

Home boarders get booked up for the school holidays very early!  If you have your holiday at roughly the same time each year, talk to your home boarder about how much notice they normally need for a school holiday booking, or ask if they are able to ‘pencil you in’ and let you know when they start to get full. 

For further information on the home boarding process, contact  

Are you using a licensed dog boarder?

With the rise in the use of home dog boarders and day carers do you understand the importance of using a licensed operator?

If you choose someone who is operating illegally without a licence the chances are that their insurance will be invalid should anything happen to your pup.

When you choose a licensed dog boarder you can be safe in the knowledge that they have had to prepare policies that adhere to the Animal Welfare Law (licensed activities) 2018.

These policies include cleaning regimes, exercise and play plans, emergency procedures in the event of a fire or flood etc and many more.

There will have been an inspection of the property to ensure it is suitable and safe. The inspector will decide how many dogs they feel is safe to have in the home, so there is no worry of cramming dogs in, stacking them in crates, or leaving them all day to go and do another job.

The licensed dog boarder will have also had to pay a licence fee which shows they are invested in what they do.

There are some unlicensed boarders who are very good, but they are operating illegally and there is a fine and prison sentence attached to the offence.

I know which I’d choose.