[2024] UKUT 178 (AAC)

Section 149(3) of the Environmental Protection Act 1990 confers on an appointed local authority officer power to seize and detain stray dogs. If no owner claims a stray dog within seven days of its seizure, the officer has power to dispose of the dog in various ways, which include “giving it to an establishment for the reception of stray dogs” (section 149(6)).

The Animal Welfare (Licensing of Activities Involving Animals) (England) Regulations 2018 (2018 Regulations) came into force on 1 October 2018. The 2018 Regulations replaced, in relation to England, the Animal Boarding Establishments Act 1963. Under regulation 3, a local authority is the licensing authority for any licensable activity carried on at premises in its area. It is not disputed that the Council is a licensing authority under the 2018 Regulations.

The licensable activities specified in Schedule 1 to the 2018 Regulations include the following:

In determining whether an activity is being carried on in the course of a business, paragraph 1 of Schedule 1 to the 2018 Regulations requires the licensing authority to take into account whether the operator “earns any commission or fee from the activity”.

Paragraph 5 of Schedule 1 to the 2018 Regulations provides that the licensable activity specified in paragraph 4 “does not include keeping a dog…on any premises pursuant to a requirement imposed under, or having effect by virtue of, the Animal Health Act 1981”. The Control of Dogs Order 1992 is made under section 13 of the 1981 Act. Article 4 of the 1992 Order provides for certain uncollared dogs to be seized and treated as stray dogs under section 149 of the Environmental Protection Act 1990. As I have mentioned, section 149(3) permits an appointed local authority officer to seize and detain a stray dog. Subject to various conditions, where a stray dog has been detained for seven clear days, the appointed officer may “dispose of the dog” (section 149(6)).

Where the licensable activity under the 2018 Regulations is providing day care for dogs, paragraph 20 of Schedule 4 imposes a general licence condition that “no dog may be kept on the premises overnight”.