Chancepixies v North Kesteven (Judgment)

Chancepixies Animal Welfare v North Kesteven District Council

[2017] EWHC 1927 (Admin)

Queen’s Bench Division, Administrative Court (London)

Garnham J 26 July 2017

Judgment

David Wolfe QC (instructed by Bindmans LLP)  for the Claimant

James Rankin (instructed by North Kesteven District Council) for the Defendant

Jeremy Dable ( Direct Access ) for the Interested Party (Little Rascals Pets Limited)

Hearing dates: 5th & 6th July 2017

—————————-

Approved Judgment

Mr Justice Garnham:

Introduction

  1. Chancepixies Animal Welfare is a charity whose aims include the promotion of responsible breeding and ownership of dogs, in order to relieve the suffering of animals. On 18 October 2016 North Kesteven District Council granted a company called “Little Rascals Pets Limited” a “dog breeding licence” under section 1 of the Breeding of Dogs Act 1973. By these proceedings, Chancepixies, the claimant, challenge that decision. North Kesteven District Council are the defendant and Little Rascals Pets Limited are the interested party.
  1. The claimant was represented by Mr David Wolfe QC, the defendant by Mr James Rankin and the interested party by Mr Jeremy Dable. All three counsel provided a skeleton argument and made oral submissions. I am grateful to them for their assistance.

The History

  1. Little Rascals Pets Limited operates a commercial breeding establishment at premises known as The Dairies, Brant Broughton, Lincoln. The concern had previously carried out business under the name “Swindells Livestock Limited”. The directors of the company are Edward Swindells and Bridgett Dickens. According to Ms Dickens the company began as a farming business but, some twenty years ago, diversified into professional dog breeding. She says that traditional farming buildings at the premises were converted into breeding kennels. She says the business is now run by three directors and fourteen full time staff members.
  1. In March 2016 the claimant issued judicial review proceedings challenging the defendant council’s decision of the 20 January 2016 to grant a dog breeding licence to Swindells Livestock Limited. The defendant then purported to revoke that licence and issue a new one on 20 June 2016, acknowledging at the time that there were illegalities in the earlier licence. The claimant asserted that the defendant had no power to revoke a dog breeding licence once issues. In the event the proceedings were settled by a consent order which quashed both the 20 January 2016 licence and the 27 June 2016 licence and put in place a timetable for the interested party to make a further application for a dog breeding licence by 19 August 2016.
  1. On 8 September 2016 the interested party requested an extension of 21 days for the expiry of the existing licence. It appears that on 5 September 2016 an inspection of the premises had been aborted following a disagreement between the interested party and the veterinary surgeon, instructed by the defendant to inspect the premise, Dr Samantha Scully. In a statement I have been shown in these proceedings, Dr Scully says the following, as is material to the present proceedings;

“During the hour I spent outside I noted that the dogs that were being exercised in outside runs at the time of arrival were still the same dogs at the time we left. These are the only exercise areas (bar two smaller ones) and so it was evident to me that all the dogs onsite were not spending time outside being exercised.”

  1. On 15 September 2016 officers of the defendant council together with a different veterinary surgeon, Mr Matthew Fry, visited the premises with the purposes of conducting an inspection. The environmental health team leader on that inspection, Mr Mark Stuart, produced a nineteen page report on that inspection (the “officer’s report”). That report was made under section 1(2B) of the Breeding of Dogs Act 1973. Appended to that report were sketch plans of the premise and a one page report from the veterinary surgeon, Mr Fry. On 18 October 2016 Mr Mark Taylor, Head of Environment and Public Protection at the defendant council, took the decision which is under challenge in these proceedings.
  1. The notice of decision included the following;

“1.      Facts

The application is for a dog breeding licence under the Breeding of Dogs Act 1973. On 20 January 2016 and 27 June 2016, the Council made decisions to grant a licence for the premise. However, following a challenge to those decisions by Chancepixies Animal Welfare, an animal welfare charity, the Authority accepted that there was some error in their procedure in the grant of the licences and therefore agreed that the licence should be quashed and a new application made to be considered afresh.

  1.           The Decision

That the application for a dog breeding licence be granted for the reasons set out in the attached officer report. The licence shall be subject to the conditions as set out within the attached officer report. The licence shall come into force on the date of this decision and shall remain in force until the end of the period of one year beginning with the day on which it comes into force.

  1.           The following is the decision making body or person:

Mark Taylor, Head of Environment and Public Protection….

  1.           List of documents submitted for consideration in relation to the matter in respect of which the decision is to be made (except exempt items):

(i)     The officer report on this matter dated 17 October 2016 with Appendices attached;

(ii)     Report from Matthew Fry, veterinary surgeon.

  1.           The reasons for the decision:

The decision maker was satisfied that the application adequately meets the requirements of the Breeding of Dogs Act 1973 for the reasons set out in the officer report attached.”

  1. The application for permission to apply for judicial review was filed on 23 December 2016 and permission to apply was granted by Collins J on 4 May 2017.

The Relevant Legislation and Guidance

  1. The Breeding of Dogs Act 1973 provides as is material as follows:

1.— Licensing of breeding establishments for dogs.

(1) No person shall keep a breeding establishment for dogs except under the authority of a licence granted in accordance with the provisions of this Act.

(2) Every local authority may, on application being made to them for that purpose by a person who is not for the time being disqualified—

(a) from keeping a breeding establishment for dogs; or ….

(g) under section 34(2), (3) or (4)  of the Animal Welfare Act 2006

grant a licence to that person to keep a breeding establishment for dogs at such premises in their area as may be specified in the application and subject to compliance with such conditions as may be specified in the licence.

(2A) On receipt of an application by a person to a local authority for the grant of a licence under this Act in respect of any premises—

(b) in any other case, the authority shall arrange for the inspection of the premises by a veterinary surgeon or veterinary practitioner or by an officer of the authority (or by both).

(2B) Where an inspection is arranged under subsection (2A) of this section, the local authority shall arrange for the making of a report about the premises, the applicant and any other relevant matter; and the authority shall consider the report before determining whether to grant a licence…

(4) In determining whether to grant a licence for the keeping of a breeding establishment for dogs by any person at any premises, a local authority shall in particular (but without prejudice to their discretion to withhold a licence on other grounds) have regard to the need for securing—

(a) that the dogs will at all times be kept in accommodation suitable as respects construction, size of quarters, number of occupants, exercising facilities, temperature, lighting, ventilation and cleanliness;

(b) that the dogs will be adequately supplied with suitable food, drink and bedding material, adequately exercised, and […] 2 visited at suitable intervals;

(c) that all reasonable precautions will be taken to prevent and control the spread among dogs of infectious or contagious diseases;

(d) that appropriate steps will be taken for the protection of the dogs in case of fire or other emergency;

(e) that all appropriate steps will be taken to secure that the dogs will be provided with suitable food, drink and bedding material and adequately exercised when being transported to or from the breeding establishment;

(f) that bitches are not mated if they are less than one year old;

(g) that bitches do not give birth to more than six litters of puppies each;

(h) that bitches do not give birth to puppies before the end of the period of twelve months beginning with the day on which they last gave birth to puppies; and

(i) that accurate records in a form prescribed by regulations are kept at the premises and made available for inspection there by any officer of the local authority, or any veterinary surgeon or veterinary practitioner, authorised by the local authority to inspect the premises;

and shall specify such conditions in the licence, if granted by them, as appear to the local authority necessary or expedient in the particular case for securing all the objects specified in paragraphs (a) to (i) of this subsection.…

4A.— Breeding establishments for dogs.

(1) References in this Act to the keeping of a breeding establishment for dogs shall be construed in accordance with this section.

(2) A person keeps a breeding establishment for dogs at any premises if he carries on at those premises a business of breeding dogs for sale (whether by him or any other person).

(3) Subject to subsection (5) of this section, where—

(a) a person keeps a bitch at any premises at any time during any period of twelve months; and

(b) the bitch gives birth to a litter of puppies at any time during that period, he shall be treated as carrying on a business of breeding dogs for sale at the premises throughout the period if a total of four or more other litters is born during the period to bitches falling within subsection (4) of this section.

  1. The Animal Welfare Act 2006 (“the AWA 2006”) provides as is material as follows:

1 Animals to which the Act applies

(1)     In this Act, except subsections (4) and (5), “animal” means a vertebrate other than man…

3 Responsibility for animals

(1)     In this Act, references to a person responsible for an animal are to a person responsible for an animal whether on a permanent or temporary basis…

9 Duty of person responsible for animal to ensure welfare

(1) A person commits an offence if he does not take such steps as are reasonable in all the circumstances to ensure that the needs of an animal for which he is responsible are met to the extent required by good practice.

(2) For the purposes of this Act, an animal’s needs shall be taken to include–

(a) its need for a suitable environment,

(b) its need for a suitable diet,

(c) its need to be able to exhibit normal behaviour patterns,

(d) any need it has to be housed with, or apart from, other animals, and

(e) its need to be protected from pain, suffering, injury and disease.

14 Codes of practice

(1) The appropriate national authority may issue, and may from time to time revise, codes of practice for the purpose of providing practical guidance in respect of any provision made by or under this Act.

(3) A person’s failure to comply with a provision of a code of practice issued under this section shall not of itself render him liable to proceedings of any kind.

(4) In any proceedings against a person for an offence under this Act or an offence under regulations under section 12 or 13–

(a) failure to comply with a relevant provision of a code of practice issued under this section may be relied upon as tending to establish liability, and

(b) compliance with a relevant provision of such a code of practice may be relied upon as tending to negative liability.

  1. The Code of Practice for the Welfare of Dogs (“the Code”) was issued under section 14 of the AWA 2006. It applies to all dogs in England and its purpose is to provide practical guidance to assist dog owners to comply with the 2006 Act. It is divided into the sections which give guidance on the separate limbs of section 9(2) of the Act. That guidance includes the following provisions, on which Mr Wolfe placed particular reliance:

Section 3: The need to be able to exhibit normal behaviour patterns:

  1. Make sure your dog has enough to do so that it does not become distressed or bored;
  1. Make sure your dog has access to safe toys and suitable objects to play with and chew;
  1. Ensure that your dog can rest undisturbed when it wants to. Puppies and older animals may need more rest;
  1. Provide your dog with regular opportunities for exercise and play with people or other friendly dogs;
  1. Give your dog the exercise it needs, at least daily unless your vet recommends otherwise, to keep your dog fit, active and stimulated;
  1. If you are unsure how much exercise your dog needs; take advice from your vet or other suitably qualified dog care specialist;
  1. You should know the behaviour of your dog when it is fit and healthy. If you become aware of changes in behaviour, you should seek veterinary advice, as your dog may be distressed, bored, ill or injured;
  1. All dogs should be trained to behave well, ideally from a very young age. Only use positive reward based training. Avoid harsh, potentially painful or frightening training methods.

Section 4: The need it has to be housed with, or apart from, other animals:

  1. Make sure your dog has opportunities to spend enough time with people and friendly dogs so that it is less likely to become lonely or bored;
  1. Make sure that your dog is never left alone long enough for it to become distressed;
  1. Encourage your dog to be friendly towards other dogs and allow it to interact with friendly dogs on a regular basis;
  1. Puppies should be given regular opportunities to socialise with other dogs and people. You should always check health issues with your vet before allowing your puppy to mix with other dogs;
  1. If you keep more than one dog, you should keep them together for company if possible. They will need to get on with each other, but will also need space to get away from each other when they want to;
  1. When dogs live together you should provide enough extra resources (e.g. toys, beds, food and water bowls and places where they feel safe) to stop them from becoming competitive and fighting with each other;
  1. If your dog is fearful of, or aggressive towards, other dogs avoid the situations that lead to this behaviour and seek advice from a vet or suitable qualified dog care specialist;
  1. If social encounters distress or frighten your dog, you should seek professional help from a vet or other suitably qualified dog care specialist;
  1. You should ensure that dogs in your care are handled properly and are not stressed or endangered by other adults, children or animals, including people who look after your dog for you when you are away from home;
  1. Be consistent in the way you, your family and friends, react to your dog and do not encourage aggressive or other anti-social behaviour;
  1. When you are away, make sure your dog is properly cared for by a responsible person. When someone else is looking after your dog they also have a legal responsibility to ensure its welfare, and you should ensure that they understand its needs and any special requirements that it may have;
  1. Never leave your dog unsupervised with another animal or person who may deliberately or accidentally harm or frighten it.

Section 5: The need to be protected from pain, suffering, injury and disease:

  1. Take sensible precautions to keep your dog safe from injury;
  1. If you notice changes in your dog’s behaviour you should contact your vet and follow the advice you are given;
  1. Check your dog over regularly and watch out for signs of injury, disease or illness. Make sure someone else does this if you are away;
  1. You should carefully check your dog’s coat regularly and groom your dog, if necessary, to maintain a healthy coat;
  1. If you recognise signs and symptoms of disease or suspect that your dog is in pain, ill or injured contact a vet promptly and follow veterinary advice regarding its treatment. If at any time you have concerns about the health or welfare of your dog you should seek advice from a vet or suitably qualified dog care specialist;
  1. You should ask your vet how often your dog needs a health check, and about the things you can do to protect your dog’s health. You should follow the advice you are given;
  1. Your vet is the best person to ask about routine preventive healthcare, such as vaccination and treatments to control parasites (e.g. fleas and worms), as well as any current health problems your dog may have;
  1. If your dog is kept outside, clean up regularly to avoid disease transmission;
  1. Medicines intended for humans or other animals can kill dogs. It is important that your dog is only given medicines authorised for dogs or that have been specifically prescribed or advised by your vet for your dog;
  1. You should always consult your vet if you are concerned that your dog has eaten or come into contact with anything that could be harmful;
  1. Your dog is required to wear a collar and identity tag when in a public place. Collars should be of the correct size and fit, and should not cause any pain or discomfort. If using a microchip as a form of identification, remember to keep the microchip database up to date with any changes in your contact details;
  1. You should seek the advice of your vet before allowing your dog to breed and take all reasonable steps to ensure that you will be able to find suitable homes for puppies.

The Argument

  1. Mr Wolfe argues that the decision notice, on its face, makes it clear that the totality of the reasons for granting the licence are those set out in the officer’s report. He says that the defendant authority was required, by section 1(4) of the Breeding Dogs Act 1973, to consider the interested party’s compliance with the requirements of the 2006 Act and the Code. He argues that that necessitated the defendant taking reasonable steps to acquaint himself with the relevant information so as to enable it to answer correctly the question it had to consider.
  1. Mr Wolfe argued that, save only in one respect, there is no evidence that the veterinary surgeon or the author of the report gave any consideration to the matters itemised in section 3, 4 and 5 of the Code. Mr Wolfe says that it is not enough to point to the fact that the vet raised no concerns in relation to these matters.
  1. Further, Mr Wolfe argues that the officer’s report failed to address the particular matter raised by Dr Scully in her report of the 8 September 2016. He says that veterinary report raised a serious question as to the arrangements for exercising dogs at the premises and demanded to be addressed expressly. He puts the point in this way: “despite the Defendant’s own previous vet having raised a clear issue as to whether the exercise facilities were genuinely being used to exercise all the dogs (rather than just a few) as opposed to simply being in place” the defendant failed to investigate whether the claims made by the interested party as to the usage of the exercise facilities were correct.
  1. In those circumstances, Mr Wolfe seeks a declaration that the decision to grant the licence was unlawful and an order quashing the decision and the licence.
  1. On behalf of the defendant, Mr Rankin argues that section 1(4) of the Breeding of Dogs Act 1973 empowers the defendant to consider the provisions of the 2006 Act and the Code, but does not oblige it to do so. He says in particular that the primary focus of the report was whether the premises complied with the 1973 Act. He says that consideration was given to the requirements of the 2006 Act and the Code, but that the defendant was under no obligation to address seriatim each listed requirement in the Code, or to conduct what Mr Dable described as a “tick-box exercise” in respect of the application of every such requirement to these premises. Mr Rankin argues that the decision maker, Mr Taylor, was entitled to rely on the contents of the lengthy inspection report and the note from the vet, and to conclude that the requirements of the Act were met.
  1. Counsel for the interested party, Mr Dable, supports Mr Rankin in those submissions.

Discussion

  1. Central to an analysis of the duty of local authorities, in determining whether to grant a licence to breed dogs, is section 1(4) of the 1973 Act. The defendant authority is required to have regard, in particular, to the need to secure the nine listed qualities. Those being particular objectives that must be considered, it is likely they will also be the primary focus of the inspection and the resulting report for which section 1(2B) provides. So they were here. The report in the present case covers all nine elements with some care and some detail. No criticism is made of the inspection or the report in this regard and there is no suggestion that the decision maker failed to have regard to a particular factor to which his attention is directed by section 1(4).
  1. That, however, need not be the only focus of the local authority’s attention; the expression “(but without prejudice to their discretion to withhold the licence on other grounds)” makes it clear that satisfaction of the nine requirements does not guarantee the grant of a licence. Implicit in that provision is the existence of discretion in the local authority to withhold a licence on other grounds.
  1. It is common ground that that provision at least entitles the local authority to have regard to other matters in deciding to refuse a licence and that those other matters include the AWA 2006 and the Code. I say “at least” because Mr Wolfe contends that local authority is obliged to have regard to the 2006 Act and the Code, and to consider their application to each breed of dog at the premises. In fact, he goes further and asserts that the report needs, if it is to withstand challenge, to demonstrate that its authors have considered the application of each of the five provisions, and each of the fifty bullet pointed elements of those sections, to every animal, so far as they are relevant to the application being considered. He rejects the suggestion that that could or should be a “tick box exercise”, and contends that each relevant element of each section of the guide must be considered as a matter of substance before a licence is granted.
  1. Mr Wolfe contends that that requirement flows from the parenthetical words in section 1(4), from section 2 of the AWA 2006 which defines a protected animal as animal “commonly domesticated in Britain” or living “under the control of man”, and from the fact that the Code applies “to all dogs”. He says there is no “dis-application” or dilution of the Code’s requirements because of the size of the breeding establishment concerned.
  1. Based on those statutory provisions (and the Code), Mr Wolfe contends that, as a matter of public law, the defendant council was obliged to ask itself the right question, with a view to assessing whether there was evidence to satisfy all relevant requirements of the Code and to reach a conclusion on those matters. He extracts what he says is the relevant principle of public law applicable on the facts of this case from the speech of Lord Diplock in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064-65.
  1. In that passage Lord Diplock said:

“My Lords, in public law ” unreasonable ” as descriptive of the way in which a public authority has purported to exercise a discretion vested in it by statute has become a term of legal art. To fall within this expression it must be conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt.

The very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred…

It was for the Secretary of State to decide that. It is not for any court of law to substitute its own opinion for his; but it is for a court of law to determine whether it has been established that in reaching his decision unfavourable to the council he had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the Act he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider: see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, per Lord Greene M.R., at p. 229. Or, put more compendiously, the question for the court is, did the Secretary of State ask him-‘ self the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?”

  1. Mr Wolfe emphasizes the last sentence of that extract, but in my judgment it is important to have regard to the whole of that part of Lord Diplock’s speech.
  1. The question in the present case was whether a licence should be granted to the interested party. That question was to be answered by the defendant authority. The Court’s role is limited to considering first, whether the council directed itself properly on the law and second, whether it had taken into consideration those matters which, on a proper construction of the Act, it ought to have taken into account (and excluded those which it ought not).
  1. In my judgment, what the council was obliged to take “particularly” into account were the nine factors itemised in section 1(4). It was entitled, in addition, to have regard to the 2006 Act and the Code. It is plain from the face of the report that it did have regard to the 2006 Act and to the Code. The question reduces, therefore, to whether, as a matter of law, the council was obliged to consider, in respect of each animal or each breed of dog, each element of each section of the Code in determining an application under the 1973 Act.
  1. The short answer to that question is that there was no such obligation. The 1973 Act defines what the authority is obliged to consider. The existence of discretion to withhold a licence on other grounds cannot be converted into a duty to consider detailed provisions of other statutory codes introduced for other purposes into the performance of a statutory function under the 1973 Act.
  1. The nature of that obligation to have regard to matters other then those required expressly by the statute to be taken into account was considered in Re Findlay [1985] AC 318. At page 331, Lord Scarman referred to a submission of counsel:

“Mr Sedley also invoked the “Wednesbury principle” (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223), submitting that no reasonable Home Secretary could have reasonably omitted to consult the board. He prayed in aid some observations of Cooke J. in the New Zealand case of CREEDNZ Inc. v. Governor General [1981] 1 N.Z.L.R. G 172.”

  1. Lord Scarman went on:

“The facts of that case bear no resemblance to this case. But the judge did consider the question of the proper exercise of an administrative discretion in a situation where a statute permits but does not require consideration of certain matters. The judge said, at p. 183: “What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the court itself, would have taken into account if they had to make the decision.

These words certainly do not support Mr. Sedley’s submission. But, and it is this upon which Mr. Sedley has to found his argument, the judge in a later passage at p. 183, line 33, did recognise that in certain circumstances, notwithstanding the silence of the statute, “there will be some matters so obviously material to a decision on a particular project that anything short of direct consideration of them by the ministers . . . would not be in accordance with the intention of the Act.” These two passages are, in my view, a correct statement of principle.”

  1. Mr Wolfe argued that the Code was so “obviously material” to the question of whether a licence should be granted that it would be an error of law for the defendant to fail to consider it in detail.
  1. It is to be noted that the Code is directed at owners of dogs, rather than at the local authority, but applies to all dogs. The Code provides practical guidance to owners on how to comply with section 9 of the 2006 Act. Section 14 makes it clear that a failure to comply with the Code is not a criminal offence in itself but may be relied upon as tending to establish breach of regulations designed to promote welfare (under section 12) or control activities involving animals (section 13).
  1. The Code was not designed to be a list of pre-requisites for the grant of a licence under the 1973 Act. That is apparent on its face. Had that been Parliament’s intention the 2006 Act could have specified that that was so.
  1. In my judgment, evidence gained on an inspection under section 1 of the 1973 Act, that suggested that dogs at the premises were not being allowed to exhibit normal behaviour patterns or were not being provided with the company they were required, whether that be of dogs or of people, or were not being protected from pain, suffering, injury or disease, would be matters that the defendant would be bound to consider as matters obviously material to the propriety of granting a licence. However, the detailed recommendations of the Code, set out at bullet points under each section heading, are not “obviously material” to the decision whether or not to grant a licence.
  1. It follows that it is necessary to test the report provided in the present case by asking whether its author was alive to the general requirements of the Code and looked for evidence that the Code’s broad requirements were being met. Isolated failure to consider individual bullet points amongst the fifty in the Code would not necessarily invalidate the grant of the licence.
  1. In my judgment the decision maker comfortably passed that test here.
  1. Mr Wolfe conceded that in addressing, in detail, the requirements of the 1973 Act, Mr Stuart was adequately considering sections 1 and 2 of the Code. Mr Wolfe’s complaint related to section 3, 4, 5 of the Code and in particular the following questions:

(i)     did the dogs and puppies had enough to do so that they would not become distressed or bored;

(ii)     would the dogs and puppies would have regular opportunities for exercise and play with people;

(iii)     would the dogs and puppies would have opportunities to spend enough time with people;

(iv)     would the puppies would be given regular opportunities to socialise with people;

(v)     would the dogs and puppies would have space to get away from other dogs when they want to;

(vi)     would the dogs and puppies be left unsupervised with other dogs which might deliberately or accidentally harm or frighten them; and

(vii)     was veterinary advice sought before dogs are bred.

  1. I accept Mr Wolfe’s submission that these elements of the Code were not expressly addressed in the report. However, it is apparent that, with two exceptions, the reporting officer and the veterinary surgeon did have them in mind.
  1. The report records evidence going to the issue as to whether the dogs were given sufficient activities and whether there were regular opportunities for dogs and puppies to exercise and play with people, spend time with people and socialise with people. Thus, it was noted dogs had a minimum of 30 minutes exercise each morning and evening; staff regularly visited the kennel blocks during the day. Daily checklists were completed which showed dogs were in regular contact with people throughout the day. The veterinary surgeon, Mr Fry, recommended the provision of suitable toys into all runs to provide environmental enrichments for the dogs and puppies.
  1. Similarly, there was reference to evidence going to the question whether dogs and puppies would be left unsupervised with other dogs which might harm or frighten them. In that regard it was noted that the dogs did not display anything other than normal behaviour, the dogs were regularly visited and all the dogs on the premises were in acceptable bodily condition. 
  1. There were two issues referred to in the Code to which there was no express evidence in the report, namely that veterinary advice should be sought before dogs are bred and that dogs and puppies should have space to get away from other dogs when they want to. If the purpose of the inspection had been to ensure precise compliance with the Code, recommendations on these two issues would have been necessary. However, as indicated above, consideration of every individual bullet points is not necessarily required before the grant of a license and I do not regard the two deficiencies here as sufficient to make good a challenge to grant of the licence.
  1. The officer producing the report was accompanied by a veterinary surgeon and, in my judgment, it is inconceivable that if there had been a significant problem with the breeding program he would not have made reference to it. Similarly if the absence of express arrangements for permitting dogs to be alone if they chose to be was, or was likely to, cause dogs distress or difficulty I have no doubt, in the light of the report produced by the vet, that that would have been mentioned. Mr Wolfe says that silence on any potential issue is not sufficient. He would be right about that if the defendant authority was under a duty expressly to consider each element of the Code. But they are not, for the reasons I have given. In those circumstances, the absence of critical comment by the officer or the veterinary surgeon on either of these two discrepancies justify the decision maker concluding that there was no good reason for refusing the licence.
  1. Finally, it is necessary for me to deal with the fact that on a previous inspection another veterinary surgeon, Dr Scully, had been critical of the arrangements for exercising dogs at the premises. In my judgment this takes Mr Wolfe nowhere.
  1. I accept that during the hour Dr Scully spent outside at the premises, the dogs being exercised in the outside runs were not changed. That says nothing conclusive about the interested party’s normal practice in using the runs. More particularly the question of exercise was addressed by the officer and the veterinary surgeon visiting on the occasion of the inspection for the purposes of the current licence and they were content with what they saw. I fail to see how it can be said to be Wednesbury unreasonable for Mr Stuart, the decision maker, to make his decision on the basis of the report from his officers and the vet who visited the premises for the purposes of producing the section 1(2) report. 

Conclusion

  1. In those circumstances this application must fail.
  1. I would add that had I been of the contrary conclusion in respect of the two discrepancies referred to above, and had I concluded that the failure to address those two matters did justify some form of relief in these proceedings, I would have declined, in the exercise of the discretion which is central to the judicial review jurisdiction, to quash the current licence. The deficiencies seem to me relatively minor and a fresh application for a fresh licence is due to be determined within three months. It would, in those circumstances, have been sufficient for my concern about those two discrepancies to have been articulated in this judgment and the defendant council invited to give particular consideration to them at the time of considering a fresh application. As it is, however, I reject the application in its entirety.

 

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