Summers v Richmond upon Thames London Borough Council

The case concerned a statutory review under section 66 of the Anti-social Behaviour, Crime and Policing Act 2014 of a Public Spaces Protection Order made by the London Borough of Richmond upon Thames regulating dog control. The court considered the statutory conditions in section 59 (the need for a detrimental effect on quality of life, persistence and reasonableness) and the correct standard of supervisory review (ordinary Wednesbury review applied with careful scrutiny).

The court held that Articles 5 (maximum number of dogs) and the definition and requirement in Article 6 that dogs be kept under "proper control" were to be assessed as aspects of dog-walking regulation generally under section 59(5). On the evidence before the council the four-dog limit and the defined concept of "proper control" were reasonable. However paras 1(b) and 1(c) of Article 6 (prohibiting a dog which "causes an annoyance" and which "causes damage" to council property) went beyond what the evidence justified and were quashed.

The applicant's complaints about the exemptions and alleged discrimination were considered but the court held it lacked jurisdiction, on this statutory review, to determine a claim under section 29 of the Equality Act 2010; no challenge under the public sector equality duty in section 149 was advanced properly in the grounds.

Background and nature of the claim. The applicant, a resident and dog-owner, applied under section 66 of the Anti-social Behaviour, Crime and Policing Act 2014 for a statutory review of a Public Spaces Protection Order made by the respondent council on 16 October 2017 relating to dog control in parks, open spaces and highways. The application sought quashing of Article 5 (limit on number of dogs walked by one person) and parts of Article 6 (the requirement that dogs be kept under proper control), and challenged aspects of the order's exemptions relating to assistance dogs as unfairly discriminatory.

Procedural posture. This was a first-instance statutory review in the High Court under Part 4 chapter 2 of the 2014 Act. Articles 5 and 6 were not being enforced by agreement pending determination.

Issues framed by the court.

• Whether the council had satisfied the section 59 conditions (detrimental effect on quality of life in the locality; persistence/continuing nature; and that restrictions were justified and reasonable) in relation to Articles 5 and 6.
• The proper scope of the activity to be controlled (whether multiple-dog walking must be considered in isolation or as part of dog-walking generally).
• The level of judicial scrutiny appropriate to a challenge under section 66.
• Whether the court had jurisdiction on this statutory review to entertain an Equality Act 2010 claim (section 29 or section 149) arising from the order's exemptions.

Court's reasoning and conclusions.

• The term "activities" in section 59 was read broadly to include dog-walking in general (including fouling, leads, exclusions and numbers). As a consequence, provisions on numbers (Article 5) and control (Article 6) were part of an overarching response to dog-walking and to be assessed under the reasonableness check in section 59(5).
• The supervisory review available under section 66 is akin to judicial review and governed by Wednesbury principles. The court applied a standard Wednesbury/"could a reasonable decision-maker have reached this conclusion" approach with careful scrutiny given the potential for criminal sanction.
• On the factual and consultative material before the council (consultation responses, evidence of increases in commercial dog-walking, representations from residents and organisations) the council acted reasonably in imposing a four-dog limit with a limited licensing derogation and review after one year. Accordingly Article 5 was not unlawful.
• The council reasonably defined "proper control" in Article 6 and the general requirement in Article 6(1)(a) was lawful. However Article 6(1)(b) (prohibition of dogs "causing an annoyance") was unnecessary and duplicative of the defined proper-control requirement and lacked evidential justification. Article 6(1)(c) (prohibition in terms of damage to council property) was unsupported by evidence of individual dogs causing such damage and was therefore not justified. Paras 1(b) and 1(c) were quashed.
• The court concluded it did not have jurisdiction in this statutory review to entertain a claim under section 29 of the Equality Act 2010 because section 113 and 114 of the Equality Act confer exclusive jurisdiction on the county court for such discrimination claims; accordingly the applicant could not rely on alleged discrimination in the exemptions as a ground under section 66. No properly pleaded or argued breach of section 149 was advanced.

This statutory review was disposed of by quashing paras 1(b) and 1(c) of Article 6 of the Public Spaces Protection Order and dismissing the remainder of the application. The court found that the council had acted reasonably in imposing a four-dog limit (Article 5) and in defining "proper control" in Article 6(1)(a) under section 59(5) of the Anti-social Behaviour, Crime and Policing Act 2014, but that the additional prohibitions in Article 6(1)(b) and (c) were not justified by the evidence and were ultra vires. The court further held it lacked jurisdiction on this statutory review to determine a section 29 Equality Act 2010 discrimination complaint.