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: firstname.lastname@example.org