Dog PSPO and Byelaw Update

Fixed Penalty Fines and Dogs A flurry of emails and calls arrived with us recently to alert us to what some readers thought were PSPO Fixed Penalty Notices that had gone up in Ashton Gardens for not keeping your dog on a lead.

Some of our readers thought this was being done before the end of the Council's consultation and decision on the matter of Public Space Protection Orders for dog control.

So we had a look.

It's not what our worried readers suspected. It is (sort of) legal and proper - even if it is badly expressed and (possibly intentionally) confusingly worded.

So we thought we'd do a quick update to give our own take on what seems to be going on.

This is the newish sign that seems to have caused most of the consternation.

It appears to prohibit dogs from fouling, and requires dogs to be kept on leads.

The confusing part is the threat that "Offenders will be liable to a fixed penalty fine or prosecution"

This gives the impression that the Council can choose how to deal with transgressors for both cases, and some of our readers thought the 'Fixed Penalty' bit was being 'slipped in' by a back door.

The notice finishes with an ambition-laden strapline "Providing a clean and attractive environment" (which makes us wonder who FBC are trying to convince).

We'll look at this sign in more depth after a photo tour of the various signs at various entrances to Ashton Gardens

DOG CONTROL IN AND AROUND ASHTON GARDENS

St George's Square entrance gates dogs on leads sign

This is a very old sign that is still (more or less) at the St George's Square entrance to the Gardens.

It requires dogs to be kept on leads and specifies a maximum penalty of £100 for failure to do so.

At present, this requirement may only be enforced by prosecution in a Magistrates Court which, of course, requires proof of the failure that is "beyond reasonable doubt"

This sign is at the Gardens entrance at the extreme end of St George's Square.

It requires dogs to be kept on leads and dogs not to foul in the gardens. But it cites no justification or penalty for either.

We think a half decent lawyer wouldn't have much difficulty defending a prosecution in a Magistrates Court against someone whose dog was not on a lead here - partly because the citation and penalty is unspecified, and partly because the 'On Lead' requirement almost certainly emanates from a byelaw which we believe would need to be cited - or even published - in the Gardens, and it is not.

HOWEVER the 'fouling' may be another matter altogether (see later)

This sign is at the toddler playground in Ashton Gardens.

It asserts that dogs are not allowed in the play area and probably dates from the time when FBC was more 'carrot' (using persuasion) rather than 'stick' (using enforcement)

It cites no authority for this assertion nor does it specify a penalty.

Normally this control would be enforceable via a byelaw and prosecution via the Magistrates Court. But as far as we can tell FBC does not have a dog exclusion Byelaw or Order covering any part of Ashton Gardens.

So in reality, this is simply an advisory sign.

There are many (and varied) 'paper / plastic sticker' signs on posts throughout the gardens.

This one is typical of most.

Again it requires dogs not to foul (rather than their owners to remove any faces - which is what the Order requires).

So again, there may be an issue about defending the use of a Fixed Penalty Notice if someone chose to make an issue of it in court rather than paying the Fixed Penalty.

We think the sign ought to be more clear about what those people who are in control of dogs must do, and what might happen to them if they do not do as the notice requires. (That said, we've half an idea it is not essential to have *any* signs in place before issuing a Fixed Penalty Notice, (because fouling is addressed in an Order - as opposed to a Byelaw - and the legislation underlying the Order doesn't seem to require warning signs as the Byelaw legislation used to do).

This sign is at the entrance from St Georges Square close to the Rose Garden.

Readers will see it shares the same sort of problems of the one referred to earlier (at the extreme end of St George's Square).

The great variety of (sometimes apparently conflicting and inaccurate) signage regarding dog controls in Ashton Gardens leads us to believe that anyone wishing to do so could probably convince a Magistrates Court that they had not been properly informed what they must or must not do, and what the consequences of not doing so might be.

Put simply - how on earth is Fylde going to mount a successful prosecution when they cannot be sure which of the different signs has been seen and each of the entrances has different signs?

To be honest, the dog control signage here is a mess.

This is at the St George's Entrance gates, and appears to be a new sign - and perhaps one of the ones that has sparked the present interest.

At last we have one that properly cites the action that is required "Keep Dogs On Leads" AND it properly states that "Offending dog owners will be liable to prosecution" - which means that this offence is not (presently) subject to a Fixed Penalty Notice, but might be actioned by prosecution in a Magistrates Court if the burden of proof is beyond reasonable doubt and the dog owner cannot show reasonable excuse.

We'd be happier if the sign also gave the penalty for transgression.

But, as we said earlier, even though this sign has better wording, how can a court be sure the miscreant came in at this entrance, and not one of the others (which have different signs).

With the fountain visible in the background, this sign is at the Beach Road entrance to Ashton Gardens.

As with our first image at the top of this page, this sign appears to prohibit dogs from fouling, and requires dogs to be kept on leads. This sign is probably the most likely cause of the present confusion about new signs going up in Ashton Gardens.

That's because sign threatens that "Offenders will be liable to a fixed penalty fine or prosecution"

And this gives the (incorrect) impression that the Council can choose how to deal with transgressors for both these offences. They cannot.

What it really means is:

that a dog owner's failure to remove faces deposited by their dog may result in the issuance of a Fixed Penalty Fine Notice which, if unpaid, may result in prosecution in a Magistrates Court, and
the wholly separate offence of not having your dog on a lead may be prosecutable in a Magistrates Court if the Council can demonstrate proof beyond reasonable doubt that the dog owner had their dog off the lead, and did so without reasonable excuse.

WHAT DOES IT ALL MEAN?

Well, if Ashton Gardens is typical then it's a Fylde-wide problem. What it does show is that Fylde's dog control arrangements are in a mess, and they do need to be rationalised.

Their underlying legislation is in a mess, and their signage is in a mess.

Legislatively, Fylde's dog control byelaws date from 1989.

The first ones we know of were:

The Fairhaven Marine Park Removal of Canine Faeces Byelaw - Made 4 Sept 1989, confirmed by the Secretary of State on 26 October 1989 and coming into force on 27 November 1989.
And the Dogs on Leads Byelaw covering: Hope Street Recreation Ground; Fairhaven Marine Park; Lowther Gardens; Lytham Green; Ashton Gardens; and the Memorial Gardens in Kirkham - all of the same vintage.

But (as we showed in 'A Dogs Dinner') FBC has mostly failed to keep pace with the legislative changes that have taken place over the last 27 years, and the resulting patchwork of historic legislation is now a nightmare for staff to enforce.

Likewise, we can see signs dating from the 1980s to ones that have been put up this year - some of which (in our view) have questionable legal validity and decrease the prospect of a successful prosecution where bye-laws are involved.

So we have some sympathy with Fylde's need to unify its legislative basis and its signage.

Part of the underlying problem is that the original byelaws and signage was designed when Fylde had adopted a welfare-based approach to dogs, and a persuasive approach to their owners.

When that 'carrot' approach became the current 'stick' of 'Robocop Enforcement' the legislation and signs were no longer fit for purpose, but no one grasped the problem.

The need for change *was* reported to the Cabinet, but widespread public opposition at that time probably caused them not to progress the officer reports.

As we have shown above, a simple illustration of these problems is ably demonstrated by this sign.

Dog sign FBC

The 'On Lead' requirement emanates from a FBC Byelaw which we believe would need to be cited (or even published) in the Gardens to mount a successful prosecution - and it is not.

We say this because Fylde's actual "dogs on leads" Byelaw that is specific to Ashton Gardens includes the following text:

"Notice of the effect of these byelaws shall be given by signs placed in conspicuous positions on the approaches to the grounds."

Historically, the full set of parks Byelaws (covering all matters, not just dogs) was published at every entrance to the Gardens. They are no longer there, and without them, we think it doubtful that successful prosecutions could be achieved.

But the fouling is arguably another matter. That's because a fixed penalty scheme is already in place regarding *fouling* throughout most of Fylde.

After the 'Dogs (Fouling of Land) Act 1996' came into being, councils could make their own 'dog fouling' Orders, and FBC made 'The Fylde Dogs (Fouling of Land) Designation Order No 2 2000' (But this Order is only about dog fouling, it does not cover being on a lead, or the number of dogs etc)

This Order became enforceable from 8th January 2001 and - as far as we can understand, it (amazingly) does not require any signs to be in place in order to issue a Fixed Penalty Notice.

(The Fixed Penalty Notice allows the person accused of transgression to pay a penalty rather than risk the Council taking them to court).

That said, we can't help wondering whether a Magistrates Court would be keen to convict someone if the citation, the true nature of the offence, and the penalty had not been published in the Gardens - (as would have been required by the old byelaws).

(For example, the wording on this sign appears to require the dog not to foul (when the actual offence is failure to remove any faces deposited by a dog). Readers will note it is almost impossible to require a dog not to defecate, but this is what the words on the sign appear to require).

SO WHAT'S HAPPENING NOW?

Well, FBC want wholesale change to Fixed Penalty Fines for everything, and to extend the nature and scope of regulations for dog control.

Opposition is mounting and there have been a couple of well-attended demonstrations against what FBC are planning.

Unfortunately, Fylde Council's proposals have managed to unify folk with a diverse range of views, and galvanised them to action.

IN PRINCIPLE: Some, (like us) have an objection in principle to the use of Public Space Protection Orders and Fixed Penalty Notices.
INCOME GENERATION: Fylde will keep the income from fines, and some, (also like us) suspect they have seen an opportunity for income generation and are setting out their stall - so Fylde can do with dogs what it has done with car parks - turn them into cash-cows (that is if a dog can be tuned into a cow!).

(parking, charges, green bin charges and now dog control fines, with at least two other income raising functions proposed to be added in the near future).

And when you consider the quote of Fylde's Chief Executive, who at the Operational Management Committee Meeting of 17 January 2017, was speaking about setting Fees and Charges, and said

"....The officers do review the charges in line with the market and with neighbouring authorities at the maximum amount of income they can generate as we're moving toward a self-sufficient Council"

This picked up a theme we noted in a report of Fylde's Finance officer who was updating the Finance and Democracy Committee on its future Financial Forecast on 21 November 2016. With respect to the revenue forecast he noted that the Council faced a number of uncertainties in the future in respect of its finances, particularly arising from the reduction in central government funding for the coming years. The conclusions of his report to that Committee said:

"The Council’s stated approach to meeting these challenges, as described in the March 2016 Medium Term Financial Strategy, can be summarised as:
1....
2. To seek to maximise existing income streams and explore new sources of income generation and to review existing services for opportunities to generate new forms of income or increased levels of income;
3...."

In response to a question from Cllr Richard Redcliffe about future income streams, he said it was now commonplace for Councils across the country to look at all sorts of income generation including risky ones such as borrowing large sums of money to invest in shopping centres and business parks to generate income at one extreme, and others that are continuously looking to review their existing fees and charges and new opportunities to generate income....

"....There's this new concept of the self sufficient council, which is a term that's coming from Central Government and encouraging authorities to explore opportunities for generating income...."

INCREASED SCOPE: Some people think there is a wholesale increase in the areas to which dog controls apply. That is not altogether the case. Some are new, but the rationalisation process makes it appear that many more areas will be subject to controls they have not had before.
TOO DRACONIAN: Some believe the measures are too draconian altogether and they deny dog owners the ability to exercise their dogs off the lead on conveniently available public land, and they say free running is a requirement for their dog's welfare and health.
NOT JUSTIFIED: Some - such as professional dog walkers - feel slighted and unjustifiably discriminated against with a proposed new limit of four dogs per person.
TOO UNFAIR: Some non-professionals with more than 4 dogs complain they will have to exercise them in separate groups or have another person in control of some of them.

And this is not an exhaustive list of the complaints we have heard.

Those opposing what FBC propose have created a very impressive website called ' Fylde Orders for Dog Control Act ' which offers considerable very detailed information, analysis and advice (and if we say that, then it *IS* long and detailed!)

There was no significant mention of dogs at the Operational Management Meeting of 17 January 2017 (we didn't expect there would be), so we next expect to hear something in the future - possibly at the 7th March Operational Management Meeting.

It's likely to be another full house if dogs are on that agenda, so we'll get there early.....

Dated: 5 February 2017


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