A resident and dog walker has partially won a High Court challenge to a Public Spaces Protection Order (PSPO) brought in by the London Borough of Richmond.
However, the council said the two provisions that were quashed by the judge were only "minor prohibitions" and the bulk of the order remained intact.
The case of Summers v London Borough of Richmond Upon Thames  EWHC 782 (Admin) was brought under section 66 of the Anti-social Behaviour, Crime and Policing Act 2014.
The PSPO was approved by Richmond’s Regulatory Committee on 11 July 2017 and adopted by the full council on 12 September 2017.
It relates in part to dog control within the borough's open spaces and highways, setting out various prohibitions and requirements designed to regulate the behaviour of dog-walkers in Richmond such as picking up dog faeces, keeping dogs on leads in certain areas, exclusions from play areas and the like.
The applicant, Ms Summers, took no objection to most of the PSPO. However, she sought an order quashing Article 5 (relating to the maximum number of dogs permitted to be walked by one person) and certain parts of Article 6 (elaborating on what is meant by keeping a dog under "proper control"). [Full wording is set out below]
Article 5 set a limit on the number of dogs that can be walked by one person at any one time to a maximum of four dogs. The council would also offer 18 licences available for borough residents and borough-based businesses who wished to walk up to six dogs.
The applicant contended that these provisions within the PSPO were unlawful and ultra vires as the statutory requirements under section 59 of the 2014 Act for the making of an order were not met in each case.
Further, although not disabled herself, nor the owner of an assistance dog, Ms Summers also sought to challenge certain parts of the wording of exemptions set out in the PSPO relating to assistance dogs, as being unfairly discriminatory.
The judge, Mrs Justice May, said in relation to Article 5: “Starting from the position that dog-walking generally is properly to be viewed as the "activities in public spaces" sought to be controlled, and even applying a careful level of scrutiny to Richmond's decision-making, I have reached the firm conclusion that the decision to impose a four-dog limit (with conditions as to licences, and review after a year) was reasonable.”
In relation to Article 6 she concluded that Richmond's decision to include a definition of proper control as part of the requirement under Article 6 was reasonable and in accordance with the provisions of section 59(5).
The judge added that against the context of a flexible penalty regime and taking into account the scrutiny given to the wording of each Article of the PSPO in the council’s regulatory committee and in full council, she had concluded that Richmond acted reasonably in seeking to define what was meant by the use of the term "proper control" in Article 6.
But Mrs Justice May said that, in her view, paras (b) and (c) of Article 6 [see below] were "objectionable".
“The instances cited by Mr Rutledge [counsel for Richmond] as supporting evidence for the inclusion of a restriction against 'causing an annoyance', when read carefully, are no more than complaints of dogs being out of control. To that extent para (b) adds nothing to the requirement to keep dogs under proper control in para (a), as that term is defined in Article 6. Insofar as (b) addresses behaviours not covered by (a) then in my view there was no evidence that could reasonably have justified that further requirement under section 59(5).”
The judge said that as to paragraph (c) of Article 6, none of the evidence to which her attention was drawn by Richmond’s counsel dealt with specific damage done by any individual dog to a "Council structure, tree plant turf or other Council property".
“Damage to paths or ecology resulting from the presence of an increased numbers of dogs is a separate matter from wilful damage caused by any individual dog. I have seen no evidence to suggest that that was a problem requiring a requirement specifically to address it, over and above the requirement that a dog be kept under proper control (as defined),” she said.
The judge therefore ordered that paras 1(b) and (c) should be quashed. The remainder of the application for statutory review – including the challenge on discriminatory grounds – was dismissed.
Responding to the ruling, the London Borough of Richmond highlighted how the judge had concluded that its plans to limit the number of dogs walked by one person at any one time were lawful.
It said: “Whilst the legal action was ongoing, the council took the decision suspend and not to enforce the Order. However, now that the outcome has been confirmed, the council will work with enforcement officers and Park Guard – the company commissioned to oversee park security across the borough's parks and open spaces – to enforce the order.
Information about the licencing scheme would be released shortly, it added.
Article 5 – Multiple Dog Walking
(1) A person in charge of a dog shall be guilty of an offence if, at any time, and at the same time, he takes on to the restricted area more than four dogs unless-
a. he has a licence issued by the Council permitting more than four dogs; or
b. he has a reasonable excuse for doing so; or
c. the owner, occupier or other person or authority having control of the restricted area has consented (generally or specifically).
Article 6 – Dogs to be kept under proper control
(1) A person in charge of a dog in the restricted area shall be guilty of an offence if –
(a) his dog is not kept under proper control; or
(b) his dog causes an annoyance to any other person or animal; or
(c) his dog causes damage to any Council structure, equipment, tree, plant, turf or other Council property.
In this Article "proper control" means a dog being on a lead or muzzled if the dog requires it, or otherwise being at heel/close enough to the person in charge that it can be restrained if necessary or responding immediately to voice commands.