Exotic pet society fails in legal action against council over cancelled event

A district council has defeated a judicial review challenge over its decision to warn a racecourse owner of "a substantial risk of unlawful activity" taking place at a meeting of private breeders of reptiles and amphibians.

The claimants in Kent & Ors v Arun District Council & Ors [2015] EWHC 2295 were the chairman of the Portsmouth Reptile and Amphibian Society and the Chairman of the Federation of British Herpetologists.

The Society, which is an affiliated society of the Federation, had arranged a Private Breeders’ Meeting to be held at Fontwell Park Racecourse on 27 October 2013.

However, the owners of the racecourse cancelled the event after receiving the warning from Arun District Council.

The local authority had written to the Society – which had not applied to the council for a licence under the Pet Animals Act 1951 – earlier in the month setting out its concerns about the proposed meeting. It also informed the Society that it had advised the managers at Fontwell to cancel the event.

The council’s view had been informed by an email it received from the Animal Protection Agency, which provided evidence said to show sales outside permitted categories at previous similar events.

In the High Court Mrs Justice McGowan noted that there did not need to be absolute proof of such conduct.

“The council has a duty to receive, consider and react to the provision of such evidence. It argues that it is entitled to act in anticipation of possible unlawful activity,” she said.

“The council was bound to act on the basis of the material provided. They were alerted to the possibility of unlawful activity. They investigated that proposition and were perfectly entitled to conclude that there was a ‘substantial risk of unlawful activity taking place at the scheduled event’.”

Having reached that conclusion, the judge said, the council was duty bound to notify the racecourse’s management.

According to Mrs Justice McGowan, the real point of contention in the claim arose from the formulation of the letter from the council to the event organisers notifying them of the cancellation of the event.

On 21 October a member of Arun’s legal team had written to the wife of the first claimant (and the contact point between the Society and the racecourse).

This letter set out the statutory provisions, stated the council's duty to enforce the law and went on to the following paragraphs:

"It is the view of the council that there is a substantial risk of unlawful activity taking place at the scheduled event this is taking into account a detailed interpretation of the legislation (as outlined above) in relation to the selling of live animals. Therefore we have had to make a decision to advise the Management team at the racecourse to cancel the event. This decision has been conveyed to the Managers at Fontwell Racecourse and they are in agreement with our decision."

The claimants brought legal proceedings against the local authority seeking a quashing order following judicial review of “Arun District Council's decision to cancel a breeders' meeting scheduled to take place at Fontwell Racecourse on 27 October 2013".

The claim was argued on the following submissions,

1. 
That the council had no power to prohibit or procure the cancellation of the event;

2. Whether or not criminal offences are committed at such an event is a matter for a criminal court to determine and the council had no pre-emptive powers; and

3. The council was wrong to form the view that offences might have been committed.

The claimant's skeleton argument added: "In any event, even if the council did not make a decision that is susceptible to judicial review, its position on this matter, which is a position also adopted by other local authorities, involves an error of law and the Court is asked to grant appropriate declaratory relief for the guidance of local authorities and others concerned in the holding of meetings at which animals may be sold."

Arun District Council’s position was that the council was entitled to view the evidence of the conduct of other shows as demonstrating the substantial risk of offences occurring at the booked show.

It argued that it properly warned the racecourse managers of that risk and that the decision taken by them was made independently of the council.

The local authority also said that in any event judicial review was not the proper remedy – if there was a need for a remedy here it lay in private law against the raceourse owners.

Mrs Justice McGowan rejected the claim. The first question, she said, was whether the council, if alerted to the risk of unlawful activity, should investigate the matter and pass on its concerns to an organisation such as the racecourse owners.

“The answer must be in the affirmative,” the judge said. “The council is a public body; it has a duty to do what it properly can to prevent the commission of offences by legitimate means. Warning an organisation such as the racecourse that its premises might be hosting an event at which unlawful activity might take place is an entirely proper course to have taken.”

The second issue was whether the council was right to fear such unlawful activity.

“There is much material and arguments have been advanced at to how it should be interpreted,” Mrs Justice McGowan said. “It is not for this court to decide that there was unlawful activity at earlier events. It is rather to determine whether the council acted reasonably and properly in fearing that there was a substantial risk that such activity might occur.”

The judge concluded that on the material available that was a reasonable conclusion to have reached; “in any event it was not arguably so unreasonable as to be the proper subject of review”.

The third issue was whether Arun had ‘procured’ the cancellation of the event.

“The letter written to the organisers of the event by the council on 21 October might have been more clearly worded but it does not bear the interpretation that the claimants urge,” the judge said.

“It amounts to this, that the council had taken a decision to advise and the recipients of that advice are in agreement with it,” she added.

The judge said that the clear sense of that was that the recipients might not have been in agreement. Significantly, the uncontradicted evidence of the Executive Director of the racecourse said its staff had taken the decision on behalf of Fontwell to cancel the event “after taking into account advice from the council”.

If that decision had been wrong then the claimants were entitled to bring a private law action against the racecourse owners, the judge said.

Mrs Justice McGowan concluded that there was no arguable basis upon which the claim, even if properly brought, could succeed. Permission was refused.

The High Court judge meanwhile declined a request by the Animal Protection Agency, which intervened in the case, for clarification of s. 2 of the Pet Animals Act 1951.

The agency had sought clarification of the statute so that enforcement, by criminal sanction, would be more obviously and readily available.

Mrs Justice McGowan said: “The question of who can sell pet animals and in what circumstances is on the Parliamentary agenda, although it is clear it regularly loses its place on the list of priorities.

“Notwithstanding the understandable desire of the Intervener and others interested in the subject for clarity, it is not for this court to legislate or to determine in advance of a course of conduct what would or would not amount to the commission of a criminal offence. There are exceptional circumstances in which such a course might be appropriate; this is not one such.”

The judge said the need for greater clarification had been made out but it was not for the court to determine some act to be criminal which might not currently be in breach of the criminal law. “Nor to determine what future conduct might amount to the commission of a criminal offence.”

She added: “That the Intervener's argument can be dealt with shortly does not reflect upon its importance to the parties in this case and to similar organisations and local authorities. It may be that efforts to persuade Parliament to revisit this topic can be renewed.”