A shaggy dog story

In determining an appeal against an enforcement notice directed at the keeping and breeding of St Bernard dogs at a property in Norfolk (DCS Number 400-033-611) an inspector pointed out that there is no statutory limit on the number of dogs that can be kept at a dwelling before a material change of use takes place.

The inspector observed that the dwelling was a large, detached chalet-style property occupying a very sizeable plot and located along a narrow lane among a row of other residential properties. By the time of her visit, she found that there were 20 adult St Bernards on site. 

Setting out the legal background, the inspector recorded that in Wallington v SSW [1991], the Court of Appeal upheld an enforcement notice which required the reduction in the number of dogs kept at a private house from 44 to six on the basis that a material change of use had occurred. She noted, however, that this judgment did not establish a six-dog rule and that whether a material change of use has taken place is a matter of fact and degree, to be determined on the individual merits of a case. 

The inspector found it probable that 20 or more dogs at the appeal premises would cause some off-site impacts, but also considered that the keeping and breeding of dogs on such a large scale would have a significant impact in itself on how the dwelling and grounds were used. She ruled that such a change in use was more than de minimis. As a matter of fact and degree, she found that the scale of dog keeping and breeding had grown to such a level as to amount to a material change of use. It followed, she reasoned, that by virtue of the scale of activity, including the commercial element, the use went well beyond what could reasonably be regarded as a purpose incidental to the enjoyment of the dwellinghouse as such. Since planning permission had not been granted for the development there had been a breach of planning control. 

Nonetheless, the inspector noted that in October 2012  the council had taken the view that 14 dogs did not constitute development in this particular case. When the council’s planning enforcement officer returned to the site in June 2015, the number of dogs had risen to 17 but the council still took no action and closed its investigation. She reasoned that, had the keeping of 17 dogs constituted a breach of planning control, then it must be anticipated that the council would have acted instead of closing the file.

The inspector considered that the council’s response at this time would clearly have signified to the appellant that the number was acceptable. She held that any number will be arbitrary as there is no clear dividing line. However, it seemed to her that to require a reduction below the number of dogs that the council had effectively condoned in 2015 would be excessive. It was the escalation in numbers and breeding since that time which had triggered enforcement action, she judged. Accordingly, she varied the enforcement notice to require a reduction in the number of adult dogs kept on the land to no more than 17 and the cessation of the use of the land for the breeding of dogs for a commercial purpose.

Paws for thought!

Section 23.1121 of DCP Online also cautions against reliance on the so-called ‘six-dog rule’.