10/09/2023
Below is an update:
"The Chief Executive the the Kennel Club has successfully persuaded the Scottish Parliament to omit the ‘business test’ embedded in the Licensing of Activities Involving Animals (England)) Regulations 2018. The Kennel Club is also a member of the executive of the Canine and Feline Sector Group, the umbrella group for animal welfare organisations which is consulted by Defra, which will be proposing that the ‘business test’ is deleted from the regulations for England which will come into force in 2024 after the statutory government review in 2023. It may be useful to note that the ‘knock-on’ planning regulations which have caused so many complications under the current regulations would become irrelevant if the ‘business test was not applied."
For some time it has been clear that some local authorities are interpreting the Licensing of Activities Involving Animals (England)) Regulations 2018 differently, particularly with respect to small scale breeders. This is not surprising as many legal and sector experts have concluded that they are poorly drafted and the objective of the Regulations have not been made sufficiently clear. Until now, no guidance via legal precedent has been available even though Defra has made it clear that there was ‘never an intention to curtail the activities of hobby breeders’. Given that those small scale breeders are the most likely to be caring for their bi***es and puppies extremely well, it is regrettable that they are often placed under considerable stress through the way in which the regulations are sometimes interpreted.
However, a recent Crown Court case in Manchester brought before Judge Nicholas Dean QC now provides clarity and made it clear that a breeder ‘out of scope’ is entitled to sell puppies and that a prosecution for selling and advertising puppies for sale had been brought before him which was ‘an abuse of the Court’s process’, using a ‘perverse interpretation’ of the law’
(https://www.lawgazette.co.uk/.../charitys.../5110429.article).
In his damning ruling, the judge said the prosecutions brought by the charity Animal Protection Services (APS) and Liverpool law firm Parry & Welch, had been brought and pursued to bring charges in cases where ‘no one could properly conclude that there were realistic prospects for conviction’.
The decisions to charge the defendants ‘were profoundly flawed’.
Small scale breeders are, by and large, law abiding citizens and have no intention of flouting the law or its rules and regulations when they are out of scope of the Licensing Activity requirements. It is also clear that they have no responsibility to apply for a licence and a local authority has no responsibility to contact them. The local authority guidance regulations state clearly (see Para 8, Page 4): Responsibility for ensuring that the correct licence has been obtained and is kept up to date with the relevant local authority or authorities falls to the licence holder or prospective licence holder.
Some local authorities have actually taken it upon themselves to ‘chase’ small scale breeders and even redefine and amend the statutory Conditions and Guidelines, without reference to the Department of the Environment, Food and Rural Affairs (Defra). It is important to recognise that a statement such as ‘this local authority’s policy is that anyone who breeds a litter must be licensed’ has no legal basis: they must operate within the law as it stands – unless they introduce a by-law – which, as your own solicitor will confirm – would need government approval.
One very important paragraph which has been misunderstood is at Para 2, Page 4 of the Dog Breeding Guidance: For dog breeders a limit on the number of litters is also in place unless it can be proved that none of the puppies from these litters are sold. Some authorities have taken this to mean that any puppies sold require a licence. This is not the case: the paragraph means that a licence is not required for those breeding more than two litters a year ‘if they can ‘prove’ that none have been sold.’ This is confirmed at 9c on page 5 and was inserted to fulfil the special conditions for organisations such the armed forces, police, Guide Dogs and Hearing Dogs for Deaf People.
At Para 4 Page 4 this is again confirmed: The circumstances which a local authority must take into account in determining whether an activity is being carried on in the course of a business for the purposes of this Schedule include, for example, whether the operator
(a) makes any sale by, or otherwise carries on, the activity with a view to making a profit, or
(b) earns any commission or fee from the activity
The ‘In Scope Criteria’ also emphasises the status of ‘advertising a business’. Here, local authorities have been misled by the fact that many small-scale and hobby breeders have their own websites.
We would ask you to be aware that such websites are primarily about their hobby successes: such breeders are expected by their peers to have an Internet or social media presence and such a website is not necessarily a ‘business’ even though they may state that ‘puppies are occasionally for sale’. For the same reason, if they put the fact that they have surplus puppies on a puppy sales website – it should not be assumed that they are therefore ‘running a business’ as can be confirmed by referring to all HMRC’s nine ‘badges of trade’ – rather than the two usually quoted in letters to breeders.
Local authorities should also take in to account the ‘Out of Scope’ Guidance which states at Para 6, Page 6:
‘Breeders that breed a small number of puppies (i.e. less than 3 litters per year), and that sell them without making a profit.’’ This is followed by ‘The Government announced in the of Budget 2016 a new allowance of £1,000 for trading income from April 2017. Anyone falling under this threshold would not need to be considered in the context of determining whether they are a business.’
This means that as far as small-scale, hobby breeders are concerned that they may take ALL their expenses of their hobby into consideration: these will include feeding costs, stud fees, veterinary fees (including the costs of caesareans) and the expenses of showing, racing, agility, obedience, working or gundog trials or any other non-professional canine related activity (for this is the primary reason they breed dogs) before any ‘income’ is calculated. If their income is over £1,000 this is a matter for HMRC not for LAs through Licensing Officers, Environmental Health/Services Officers should also note that they are not entitled to question breeders about their finances: nowhere in the regulations does it give a Local Authority the authority to ask about a breeder’s income stream. Having a licence is not a means tested activity and therefore no LA can demand such information.
The following definition for dog breeders which has been accepted by many local authorities might therefore be helpful:‘ A small-scale ‘hobby breeder’ is one who breeds from a bitch because they would like to have another puppy to take part in the canine activities with which they are involved, whether that be to show, to train for agility, obedience or any other canine related pursuit. That reason can be extended to include that they would like to have another pet when one of their current dogs dies. The key issue is that they are not breeding specifically to sell dogs as a regular part of their annual income. Such hobby breeders are likely to have surplus puppies which they will want to find good homes for and they are entitled to sell them. A reasonable ‘test’ for hobby breeder is that they will (usually) be retaining one or more of any litter to pursue their hobby. A ‘hobby breeder’ will also usually fulfil the definition of a ‘home breeder’ which is one who breeds on a small scale with a limited breeding stock and within a primarily domestic environment where their pets have a degree of freedom within the living accommodation’.
