Summers v London Borough of Richmond Upon Thames

Factual and Procedural Background

This opinion concerns an application for statutory review of a Public Spaces Protection Order ("PSPO") made by the Respondent ("Richmond") under the Anti-social Behaviour, Crime and Policing Act 2014 ("the 2014 Act"). The application was brought under section 66 of the 2014 Act and challenges specific provisions within the PSPO related to dog control in Richmond's public spaces. The PSPO, issued on 16 October 2017, includes various prohibitions and requirements regulating dog-walking, notably Article 5 limiting the number of dogs walked by one person and Article 6 concerning proper control of dogs. The Applicant ("Ms Summers") challenges these provisions as unlawful and ultra vires. By agreement, Articles 5 and 6 have been suspended pending the outcome of this review.

Ms Summers is a resident of Richmond and a dog owner who actively opposed the PSPO provisions, including through petitions and council meetings. Richmond’s dog control measures have evolved over years, transitioning from byelaws and Dog Control Orders ("DCOs") to the current PSPO regime. The PSPO was enacted following consultations and council deliberations, including consideration of evidence and public input.

Legal Issues Presented

1. Whether the Respondent had the power under section 59 of the 2014 Act to include Articles 5 and 6 in the PSPO, specifically regarding restrictions on the number of dogs walked by one person and the definition of proper control.
2. Whether the procedural requirements under the 2014 Act were complied with in making the PSPO.
3. Whether certain exemptions relating to assistance dogs within the PSPO are unfairly discriminatory and thus unlawful.
4. The appropriate level of judicial scrutiny to be applied to challenges under section 66 of the 2014 Act.

Arguments of the Parties

Applicant's Arguments

• Article 5 is unlawful because Richmond failed to identify a detrimental or likely detrimental effect, the persistence of such effect, its unreasonableness, or justification for the restrictions on walking more than four dogs.
• There was insufficient evidence of persistent complaints or detriment caused by walking five or six dogs.
• The PSPO improperly penalises dog-walking activities that are merely annoying rather than seriously anti-social.
• The definition of "proper control" in Article 6 is unreasonably narrow, criminalising momentary distractions.
• Provisions criminalising dogs causing annoyance or damage are illiberal and not supported by evidence.
• The exemptions for assistance dogs are discriminatory, relying on an outdated list of charities and requiring assistance dogs to be marked, which unfairly burdens disabled persons.

Respondent's Arguments

• The activities regulated by the PSPO should be viewed broadly as dog-walking in general, not narrowly by specific numbers of dogs.
• Articles 5 and 6 fall under the reasonableness provision of section 59(5), not the initial conditions in section 59(2) and (3), and the Respondent had sufficient evidence to justify the four-dog limit.
• The PSPO was enacted after thorough consultation, balancing competing interests and addressing genuine concerns about dog control and its impact on quality of life.
• The definition of "proper control" in Article 6 is reasonable, supported by evidence of complaints about uncontrolled dogs, and is balanced by flexible enforcement provisions.
• The "causing annoyance" and "damage" provisions in Article 6 are justified by complaints and consistent with previous byelaws.
• The exemptions list is acknowledged to be outdated but would be updated at the next review, and enforcement officers are instructed to exempt relevant assistance dogs accordingly.
• The court should apply a standard level of Wednesbury reasonableness review, giving deference to the local authority's judgment.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by interpreting the statutory framework of the 2014 Act, emphasizing the wide discretion given to local authorities to define and regulate activities that have a detrimental effect on quality of life within their area. The court accepted that "activities" in the context of dog control should be understood broadly as dog-walking generally, rather than narrowly focusing on specific numbers of dogs.

Applying this broader view, the court held that Articles 5 and 6 of the PSPO should be assessed under the reasonableness requirement of section 59(5), rather than the initial conditions of sections 59(2) and (3), which concern the existence of detrimental effects and their persistence.

Considering Article 5, the court found Richmond had sufficient evidence—including consultations, surveys, complaints, and representations—to justify setting a four-dog limit with a licensing system permitting exceptions. The court acknowledged the extensive deliberations by the Regulatory Committee and Full Council, finding the decision reasonable and proportionate.

Regarding Article 6, the court upheld the inclusion of a definition of "proper control" as reasonable and supported by evidence of complaints about uncontrolled dogs. However, the court found paras (b) and (c) of Article 6 objectionable: (b) because "causing annoyance" added nothing beyond the proper control requirement and lacked evidential justification; (c) because there was no evidence of specific damage by individual dogs necessitating the restriction beyond the proper control requirement.

On the issue of exemptions related to assistance dogs, the court found the Applicant's challenge to be inadequately supported and noted a jurisdictional conflict between the statutory review under section 66 of the 2014 Act and discrimination claims under the Equality Act 2010. The court held it lacked jurisdiction to investigate alleged breaches of section 29 of the Equality Act in this review, referencing the Court of Appeal's decision in Hamnett v. Essex County Council. The court acknowledged this left a potential statutory gap but noted that the public sector equality duty under section 149 of the Equality Act might provide alternative protection, though that issue was not properly before the court.

Overall, the court applied a standard Wednesbury reasonableness test, giving due deference to the local authority’s judgment and political discretion in regulating activities within its locality.

Holding and Implications

The court ordered that paragraphs 1(b) and 1(c) of Article 6 of the PSPO be QUASHED for lack of evidential justification and reasonableness. The remainder of the application for statutory review was DISMISSED, upholding the validity of Article 5 and the other provisions of Article 6.

This decision confirms that local authorities possess broad discretion to regulate activities such as dog-walking through PSPOs, subject to reasonableness and evidential support under the 2014 Act. It also clarifies that challenges alleging discrimination under the Equality Act 2010 cannot be pursued within statutory reviews under section 66 of the 2014 Act, highlighting a jurisdictional divide between statutory review and discrimination claims.

The direct effect is that the four-dog limit and the definition of proper control (excluding the quashed subparagraphs) remain enforceable pending any further review. No new legal precedent was established beyond the application of existing principles of judicial review and statutory interpretation.