THE COUNCIL involved in a high-profile ‘Six Dog Rule’ planning application case have backed down on their insistence that a dog enthusiast in the local area has to apply for planning permission to change the designation of his house from a domestic dwelling as he owns more than six dogs, writes Nick Mays.

As reported previously, the insidious ‘Six Dog Rule’ currently threatens all dog enthusiasts who own six dogs or more and is being exercised by a number of local authorities across the country. Owners are being told by planning officers that the ownership of six or more dogs is enough to compel them to apply for ‘change of use’ for their homes. Considerations such as the health and welfare of the dogs, as well as the conditions in which they are kept are, according to one local planning department official, ‘irrelevant’ in the application of this planning ‘guideline’, as is the size or breed of the dogs. However, few if any planning departments have any idea as to what status the owner’s domestic dwelling should be changed.

The case in question came to light last summer via the Dog Legislation Advisory Group. A well-known Shar-pei breeder and exhibitor keeps 18 dogs, some in kennels and some in his substantial house, on a large and secluded property in Dorset. He was contacted by the local dog warden on an unrelated issue and was then later visited by a planning officer. The officer simply stated that Mr P (name withheld at owner’s request) would have to apply for planning permission as he had over six dogs, and this made his home "no longer a domestic dwelling".

Mr P, who is also a local JP, asked the officer (whom we identify as Mr Y) what his home would be re-designated as. "I put it to him that it wasn’t a breeding establishment," said Mr P. "Half of our dogs are retired, and we only breed one or two litters a year, so we don’t even need a licence. Nor is it a sanctuary, or a boarding kennels. We are devoted to the breed, and our dogs are our hobby. We show a lot, and because, like most dog people we know, we are responsible and sensible owners, we only keep the number of dogs which we believe we can look after properly. We are fortunate to have an ideal property for our hobby, which was why we moved here nearly six years ago, and we have never had any complaints from anyone. The officer couldn’t tell me what ‘change of use’ we were supposed to apply for, but said that it was this particular Authority’s view that having more than six dogs was not ‘incidental’ to the ‘enjoyment’ of the property for domestic or residential purposes, and that consequently a new planning permission was required."

Soon afterwards, Mr P received a letter from Mr Y explaining that he had 21 days to apply for planning permission or he could receive an enforcement notice requiring him to reduce the number of dogs on his premises. Additionally, the cost of the required planning permission was £220. Mr P pursued the matter further with the planning officer and asked a number of searching questions by letter.

Mr P later received a brief reply from Mr Y, who stated that he was unable to answer [Mr P’s] questions, but that "every case was determined on its merits", and reiterated that he expected Mr P to apply for planning permission for ‘change of use’ of his home.

Mr P was somewhat taken aback by this response, and said at the time: "The Authorities ducking of my questions was perhaps highly predictable, but is patently unacceptable, in that the applicant – me - is effectively being asked to apply blind, with no idea of what criteria are to be used, or what any precedents are. On top of that the applicant is being asked to shell out £220 up front to find out. In my view, the questions remain fundamental and are basic information that any individual has a right to know before he applies."

From what Mr Y said in his brief reply, it would seem that a few issues were clarified, notably that it is purely the number of dogs that individual planning officers believe should be kept on a property. Through previous cases, a figure arbitrarily arrived at as six appears to trigger the planning requirement, although Mr P’s subsequent investigations suggest that this could be an even lower number if the planners, in their wisdom, thought the property unsuitable.

"So it’s just the numbers, nothing to do with welfare, size of premises, reasons for the numbers of dogs being kept etc. at this stage," adds Mr P. "Only when the application has been made, and fees paid, do they then involve ‘welfare’, and it would sound as if the applicant's future is then entirely in the hands of someone who apparently has total power to decree whether in his/her opinion you keep your dogs 'properly' and the premises are appropriate. This is a very dangerous position to put yourself in. So we have a planning requirement, but largely if not entirely determined by a different department, namely Environmental Services."

This leads to an interesting paradox. As Mr P pointed out at the time, it is possible that the welfare officers might tell a dog owner that they think the owner needs better kennelling or more purpose built accommodation to satisfy their criteria, but this in itself may then be a barrier to the granting of the planning permission, because the planners would say the property is then 'overdeveloped' in their terms – a total ‘No Win’ situation for the owner.

Mr P has always felt that the whole issue is far more insidious and goes far deeper than just a matter of pet ownership: "From what the Authority is saying, it seems to me that it all revolves around the word 'incidental', and that they believe they have the right to determine what is 'incidental' in your home, even though you may be causing no harm or hindrance to anyone, nor breaking any law. This, I believe, is a fundamental breach of an individual's rights. It may be a different matter if the 'hobby' does cause a problem for neighbours etc. (through noise, smell, inconvenience etc) but those issues are, in any case, covered by standing environmental law.

The local authority’s claim for the ‘re-designation’ of Mr P’s home is based on a case that dates back to 1989 and 1990 from an entirely different local authority, which apparently serves as a guideline for all similar cases. Wales and Montgomeryshire District Council had successfully argued in court that whereas the council’s officer accepted the owner’s assertion that the keeping of dogs was a hobby, the ‘intensity of the use [of the owner’s home] had so changed the character of the property that it could not be regarded as incidental’. Even though the judge in the case rejected the Inspector’s figure of six dogs as ‘arbitrary’, he let it stand and ruled in favour of the council.

Mr P had not heard from the council for several months, until he received a letter earlier this month in which the planning authority said that they were not now intending to pursue Mr P’s case, nor to insist on him applying for planning permission.

Mr P told OUR DOGS: "You may recall that they wrote to us in August saying exactly the opposite, and asking us to apply. Our legal advice was not to apply for planning permission until we had definitive answers to our questions, so that we could properly assess our position. We have heard nothing since, until last week. Of course we are highly relieved at the decision, but this has been a very worrying and stressful time, over a prolonged period.

The reason for their change of mind is, they say, that they have taken account of the fact that we brought 14 dogs with us when we moved here over 5 years ago, and they have subsequently received no complaints about us. Presumably the Environmental Health people have also had to acknowledge the first-class conditions in which our dogs are kept as an input to this decision.

"There is a minor sting in the tail however, when they say that the matter is closed as long as no complaints are received in the future, but I suppose that's an inevitable consequence of this process. I don't like the caveat, as there are plenty of anti-dog and mischievous people around, but I don't think there's much we can do about it.

"My gut feeling is that in reality they have assessed the implications in terms of time and cost (to the Council Tax payer) of pursuing this particular case, where they were aware that we would fight it all the way. I still cannot see what they hope to achieve by pursuing ordinary individuals in this way, when they are causing no harm or hindrance to anyone. The random application of such a ‘guideline’ for its’ own sake seems like bureaucracy gone mad, and a fundamental invasion of individual privacy, and surely was never meant to be implemented in this way. The unfortunate truth however is that these issues can only be challenged in a rational and reasoned way, usually through the Courts. This would now include testing it against the Human Rights Act 1998, which an individual Authority would perhaps prefer not to do, given the cost and risk, which would in any case have exposed them to a lot of bad and unwanted publicity."

Mr P is not resting on his laurels however, and is urging all canine agencies – and owners – to be vigilant for any further such actions of this kind from local authorities.

"I think we all need, through good offices such as your own, and particularly through the Kennel Club and the DLAG, to be vigilant and aware that the outcome may have been different if they thought we might have simply rolled over under the pressure. There is clearly a need for some clarification on exactly what this planning ‘guideline’ means, not just for dog owners, but perhaps for anyone pursuing a hobby in the privacy of their own home.

The problem with ‘case law’ is that it can only be changed by a different decision in a later case, so it’s probably true that somewhere down the line there will have to be a test case.

But these are costly, lengthy and stressful, and no individual in his right mind would want to volunteer for that. But it may be inevitable, and would need to be backed fully by all the interested parties, and particularly by the KC.

"I’m sure there are many law-abiding dog owners who would have been truly intimidated by such action on the part of their local council. As it is, we have spent since last August watching each morning for the dreaded brown envelope to drop on the mat, and that in itself has been a considerable and increasing pressure on us. I was out this morning when the letter finally arrived, and my wife left it for an hour before she finally swallowed hard and opened it. Thankfully it was good news. I’m not sure what she would have done if it had been an Enforcement Notice, and such are the stresses of such a situation.

"I’m very grateful to OUR DOGS and the DLAG for publicising our case and I hope that in doing so we may all have done a little good in the long term, but I suspect this is not the last we shall hear of this iniquitous rule, while the planning guidelines stay as they are."