FOIA Request: Your claim to have a 'county-wide' Dog Control Order

Response to this request is long overdue. By law, under all circumstances, Cornwall Council should have responded by now (details). You can complain by requesting an internal review.

Dear Cornwall Council,

Freedom of Information Act: Your claim to have a ‘county-wide’ Dog Control Order

Regarding the introduction of Dog Control Orders, The Clean Neighbourhoods Act 2005 is very clear, as far as I am concerned. At S56 of the Act, it reads as follows:

(4) The appropriate person must BY REGULATIONS PRESCRIBE THE PROCEDURE to be followed by a primary or secondary authority before and after making a dog control order.
(5) Regulations under subsection (4) must in particular include provision as to –
(a) CONSULTATION to be undertaken before a dog control order is made.
(b) The publicising of a dog control order after it has been made.

In the 'General' Section, the 'appropriate person' is clarified as being the Secretary of State. For Dog Control Orders, that will be the Secretary of State for the Environment. My understanding of the legal use of the word ‘prescribe' is that it usually means that what is ‘prescribed’ is ordered and imposed, NOT optional. Indeed, the Defra guidelines repeatedly confirm that the Defra guidelines are “not optional”.
What the Act is saying, very clearly, is that the Defra regulations (set down by the Secretary of State for the Environment) MUST be followed because they have come from the 'appropriate person' identified in the Clean Neighbourhoods and Environment Act.

S56 of the Act states that the procedures must be followed “by a primary or secondary” authority, and as far as I know, that includes both Cornwall Council itself and its various district and parish councils, doesn’t it?

As the Principal Legal Officer at Cornwall Council, I am sure you are better qualified than I to understand this section of the Act; and that indeed, you will know which Act excuses Cornwall Council from complying with the regulations, if such an Act exists.

I am also sure that it will be a simple matter for you to check with Council staff that the Defra guidelines have been correctly followed in this instance.

1) My first question to you is therefore:

Can you please confirm that:

a) My understanding of S56:4 of the Act accords with your own; and

b) There is no subsequent Act of Parliament that contradicts it regarding Cornwall Council’s obligations to comply with regulations when introducing Dog Control Orders.

------------------

The Clean Neighbourhoods Act requires all councils to follow specific procedures if they wish to introduce a Dog Control Order. The document published by Defra, entitled “Getting to grips with the Clean Neighbourhoods and Environment Act 2005 – a parish council guide to environmental enforcement” makes this very plain:

“The procedures given in the Regulations are not optional – they must be followed, as failure to do so will invalidate an order, leaving a parish council open to challenge in the courts.”
(Available at: http://archive.defra.gov.uk/environment/...)

The document published by Defra entitled “Dog Control Orders” clearly sets out the procedures for introducing them and reiterates that the procedures councils must follow is not optional:

Guideline 28 in the document entitled “Dog Control Orders” states:

“The procedure for making a Dog Control Order is set out in regulation 3 of the Dog Control Orders (Procedures) Regulations 2006. It is important that this procedure is adhered to, since a failure to do so will invalidate the order.”
(Available at: https://www.gov.uk/government/uploads/sy...)

2) My second question to you is therefore:

Can you please confirm that you understand and agree that the Defra guidelines are NOT optional and failure to comply with them renders the DCO invalid?

---------------------

Guideline 29 in the booklet entitled “Dog Control Orders” states:

“It is also important for any authority considering a Dog Control Order to be able to show that this is a necessary and proportionate response to problems caused by the activities of dogs and those in charge of them.”

3) Since you seem to be struggling to provide even the most basic of the information I have requested, I have simplified the questions on this topic and my third question to you is therefore:

a) Do you have evidence that introducing a county-wide Dog Control Order was a ‘necessary and proportionate response to problems caused by the activities of dogs and those in charge of them.’? A simple Yes or No response will suffice and I will obtain the information under an FOIA request, if you answer ‘yes’ to this question.
b) Please explain why dog mess was so much more serious on marshland and woodland across the county, than other ‘nuisances’ such as littering.
c) Please explain why dog mess on marshland, woodland and open countryside is considered more hazardous to public health than the faeces deposited there by rats (where the toxocara parasite originate), foxes (the largest group of carriers of the parasite after rats) and every other wild animal, or farm animal, that excretes on these areas of land.

-------------------------------
Guideline 30 states:

“The authority needs to balance the interests of those in charge of dogs against the interests of those affected by the activities of dogs, bearing in mind the need for people, in particular children, to have access to dog-free areas and areas where dogs are kept under strict control, and the need for those in charge of dogs to have access to areas where they can exercise their dogs without undue restrictions. A failure to give due consideration to these factors could make any subsequent Dog Control Order vulnerable to challenge in the Courts.”

4) My fourth set of questions to you is therefore:

a) Please explain how dog owners’ needs have been catered for in areas where dogs have been banned from all beaches in the summertime period (I am thinking, particularly, of St Ives). Please explain how you have catered for “the need for those in charge of dogs to have access to areas where they can exercise their dogs without undue restrictions.”
b) Please explain why Cornwall Council is encouraging local councils to introduce dog bans without due regard for the needs of dog owners.
c) Please explain why you consider this acceptable, given that the law requires that dog owners are properly catered for. NB: telling dog owners to exercise their dogs in the countryside, and introducing a blanket ban on dogs on beaches, is not acceptable under the Defra guidelines.
d) Please clarify Cornwall Council’s position on dogs and dog owners and whether or not the Council actually wishes us to live, or holiday, in the county with our pets.

------------------


Guideline 31 states:

“Authorities should also consider how easy a Dog Control Order would be to enforce, since failure properly to enforce could undermine the effect of an order.
This is particularly the case for orders that exclude dogs completely from areas of land. These will be easier to enforce if the land is enclosed. However, such orders should not be ruled out for unenclosed land where a special case for them can be made, for example to provide dog-free sections on beaches.”

5) My fifth question to you is therefore:

a) In the interests of equality, can you please confirm that you are sending staff out with binoculars to spy on litterbugs, in the same way that they spied on Roger Hobkinson when he was out on marshland walking a disabled friend’s dog?
b) Please confirm that you have sufficient numbers of properly-trained officers to cover the entire county on a 24/7 basis and ensure that every single dog owner who fails to pick up after his/her dog will be prosecuted.
c) Please confirm that the members of staff involved in spying on Roger Hobkinson, and the officer who fined him, have all been on the requisite Government-approved training scheme for handing out such fines.
d) Please explain why you feel that unenclosed land such as marshland, woods and fields qualify as a ‘special case’ for a DCO, when you obviously cannot control the quantities of excrement left in these areas by wild animals.

-----------------------------------

Guideline 34 states:

“Authorities must also publish a notice describing the proposed order in a local newspaper circulating in the same area as the land to which the order would apply
and invite representations on the proposal. The notice must:

(a) identify the land to which the order will apply (and if it is access land state that that is the case);
(b) summarise the order;
(c) if the order will refer to a map, say where the map can be inspected. This must be at an address in the authority’s area, be free of charge, and at all reasonable hours during the consultation period;
(d) give the address to which, and the date by which, representations must be sent to the authority. The final date for representation must be at least 28 days after the publication of the notice.”

6) My sixth question to you is therefore:

a) Please provide details of when and where notices were published informing the public of the Council’s intention to introduce a county-wide DCO.
b) Please provide details of the dates on which you published this information in all relevant newspapers, so that I may obtain back copies from the newspaper publishers.
c) On what date did the public consultation commence and when did it end?
d) How many responses did you receive to the public consultation?
e) What were the results of the public consultation?
f) How long did it take the Council to process all the responses they must have received, prior to deciding to introduce the county-wide DCO?

----------------------
Guideline 35 states:

“At the end of the consultation period the authority must consider any representations that have been made.”

7) My seventh question to you is therefore:

a) On what dates were meetings held to consider the responses to the public consultation?
b) Where are the results of the public consultation regarding the introduction of the county-wide DCO published?

---------------------

The Defra guidelines for parish councils also state that:

“Where a dog control order has been made to cover the whole parish, it is never going to be practical to put up a notice at each point that someone can enter a parish. In this case a more practical solution is to put up signs at different locations, adjacent to, or on the highway, throughout the parish.”

8) My eighth question to you is therefore:

a) Please detail how much the Council has spent on installing new signs right across the county, clearly informing members of the public that the ‘county-wide’ DCO is in place.
b) Please confirm that this exercise has been completed and that there is now clear signage right across the county, ensuring that members of the public can be in no doubt about the implementation of the ‘county-wide’ DCO.
c) Please confirm that you have the written permission of all the private landowners in the county to implement the DCO across their private land.

9) My ninth question to you is:

a) Please confirm that you understand that Cornwall Council’s hate campaign against dog owners, and its support of parish councillors who are discriminating unfairly against us, is splitting communities, fuelling mistrust of all dogs amongst the general public and making many dog owners ‘anti-kids’ in the process.
b) Please confirm that Cornwall Council is pleased to be causing such rifts in formerly peaceful communities.

I do hope that I have simplified my questions sufficiently for you now to be able to provide a clear response to my questions and that you will not be trying to insist that this is a ‘complaint’ when it so obviously isn’t. Kevin Brader originally started quoting sections of the Clean Neighbourhoods Act, and I am merely looking at the rest of it and asking whether or not you really have followed the law.

I don’t think you have, but I will await your response to this letter with interest nonetheless.

Yours sincerely

Penny Bunn (Ms)

Yours faithfully,

Penny Bunn

Penny Bunn left an annotation ()

This request has been submitted after a long exchange of letters with Cornwall Council, who have done all they can to turn it into a 'complaint'.

It ISN'T a complaint and the letter from which this request has been copied advised the Council that if they continued to refuse to answer my questions, I'd resubmit them as an FOIA request. They have now stated they will treat it as an FOIA request but I wish them to reply on this website, rather than sending me a personal letter.

Dunhill Eleanor, Cornwall Council

7 Attachments

Dear Ms Bunn,

 

Please find attached a letter formally enclosing the Council’s response to
your request for information under the Freedom of Information Act 2000. If
you have difficulty in opening the attachment(s), please contact me and I
will send you a copy by post.

 

Kind regards,

 

 

Eleanor Dunhill

Legal Secretary & FOI Rep

Legal Services, Cornwall Council

 

 

East Wing, First Floor, Council Offices, Dolcoath Avenue, Camborne, TR14
8SX

  

[1]www.cornwall.gov.uk

 

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Dear Ms Dunhill Eleanor,

I have received your response to my FOIA request and comment below:

1. Questions 1(a) and (b) and 2

I made it very clear, in my conversation with Karen North (and I think it is crystal clear from my FOIA request) that I was NOT requesting legal advice from you, but trying to get you to confirm that you do know that you are required by law to follow a specific procedure from which there are no exemptions.

The councils' ongoing reluctanct to answer this question - illustrated so perfectly in your response - is a clear indication that YES, you know exactly what the law requires of you in this respect and that you have chosen to ignore it.

As far as this section of my query is concerned, therefore, I shall assume that Cornwall Council is very much aware it has broken the law and is doing its best to conceal that fact.

Question 3

a) The Authorisation made by the Corporate Director Communities contains NO EVIDENCE to justify the introduction of any kind of Order, but merely reprints the legal requirements and then states that the Director feels the DCO is justified. What rubbish! This document isn't worth the paper it is written on and in no sense constitutes 'evidence' that could possibly justify introducing anything. It's just somebody's unqualified opinion, written down on one sheet of paper and does not even illustrate WHY the Order could be considered justified.

I note you have ignored questions 3b) and 3c) and request that you now please answer them.

3b) Please provide the EVIDENCE you have which makes it clear that dog mess is more serious and dangerous on marshland and woodland than other offences such as (for example) littering.

3c) Please provide the EVIDENCE you have that dog mess on marshland, woodland and open countryside is more hazardous to public health than the faeces of rats, foxes and other wild animals and farm animals.

Question 4

a) The documentation you have attached does not explain, in any way, how dog owners' needs have been catered for in areas where dogs have been banned from all beaches, such as in St Ives. It does not, indeed, mention Guideline 30 at all which requires that authorities must give consideration to "the need for those in charge of dogs to have access to areas where they can exercise their dogs without undue restrictions." The document you have attached has not even touched on that, and therefore does not answer my question.

Question 4(b) and 4(c)

To make it easier for you to understand - please send through a copy of your current policy on dogs and whether or not they are welcome in Cornwall.

Question 4 (d)

The documentation you have provided is irrelevant to the questions I have asked, although it seems clear that the Council's approach to the implementation of Dog Control Orders is that it does not need to observe the legal requirements at all.

Cornwall Council MUST give due consideration to its tourist trade and the type of holidaymakers it wishes to attract. Therefore, there must be documentation outlining which societal groups the Council wishes to attract to the County. Can you please provide me with a copy of this documentation.

Question 5

Guideline 31 of the Defra guidelines is clear: "failure properly to enforce could undermine the effect of an order". Elsewhere in the guidelines, it is made clear that if an Order is not enforced, it becomes invalid.

Since you admit that it is not possible to enforce the order over such a wide area and with such limited staff, the county-wide DCO CANNOT be valid; you either enforce it (rendering it legal) or you don't (rendering it useless). You can't cherry-pick and decide that because you enforce it occasionally, it is valid. That is not what the Defra guidelines state.

5b) Clearly, you do NOT have sufficient numbers of trained officers available to patrol every open space in Cornwall 24/7; therefore, according to the Defra guidelines, the county-wide DCO is invalid.

5c) This question related specifically to the officers involved in the prosecution of Roger Hobkinson. Please confirm that THE OFFICERS INVOLVED in that case had been on the requisite Government-approved training scheme.

5d) Don't be so ridiculous! I'm not asking for legal advice, and you know that perfectly well. I am asking you to PROVIDE EVIDENCE, then, to justify enforcing a DCO on open areas of countryside and marshland where the excrement of wild animals is obviously widespread. JUSTIFY, WITH EVIDENCE the decision to try introduce a DCO across such land.

Question 6 and 7

You have provided me with three advertisements, placed in the West Briton Newspaper on 12th February, 16th April and 8th July 2010. These tiny advertisements - placed in a newspaper that at the time, had a circulation of 33,579 and which covers Devon, Somerset and Dorset as well, CANNOT constitute the proper observations of Guideline 34, which specifies that notices must be placed in a local newspaper in the same area as the land to which the order would apply.

Indeed, in the SIP Final Report you have attached to your reply, it is noted that it would cost Cornwall Council a lot of money to post notices in all the local newspapers across Cornwall, which it would need to do if it wanted to be in control of all the DCOs on Cornwall's beaches.

So, it is clear that the Council was very well aware that in order to introduce any kind of 'county-wide DCO', it would have to post advertisements in all local papers at huge cost to itself. It is also clear that the three misleading advertisements you HAVE placed in the were deliberately placed as small-print ads, in the back of newspapers which are also sold in Somerset and Devon.

I suggest that scant attempt was made at bringing your intentions to the attention of the general public, and I suggest that you did this on purpose.

This is NOT what I understand the intention of Regulation 34 to be.

c) You have not complied with this aspect of my FOIA request. On what date did the public consultation commence and when did it end?

d) You have not complied with this aspect of my FOIA request. How many responses did you receive to the public consultation?

e) You have not complied with this aspect of my FOIA request. What were the results of the public consultation?

f) You have not complied with this aspect of my FOIA request. How long did it take the Council to process all the responses they must have received, prior to deciding to introduce the county-wide DCO?

Question 7a) You have not complied with this aspect of my FOIA request. On what dates were meetings held to consider the responses to the public consultation?

Question 7b) You have not complied with this aspect of my FOIA request. Where are the results of the public consultation regarding the introduction of the county-wide DCO published?

Question 8a) The SIP report does specify a ballpark figure for the costs that would be involved if the Council was to pay for signage on all beaches. Therefore, I suggest you DO have figures for how much it has cost to install the correct signage regarding the county-wide DCO and request that you send that through to me, please.

8b) This is not a request for an opinion. I am asking for written confirmation that as far as you are concerned, the council has complied with the Regulation requirements and that clear signage has been erected right across the county, CLEARLY stating that a DCO is in place under the Clean Neighbourhoods Act.

c) If you do not have the permission of all landowners to introduce a DCO across their land, then you CANNOT claim to have a county-wide DCO. Please provide evidence that this DCO is valid, because I cannot see how it can be regarded as 'county-wide' when clearly, private land is not covered. If you don't have written agreements from all landlords that they are happy for such a DCO to be introduced across their land, then you can't have a county-wide DCO and you can't prosecute people under that county-wide DCO.

9) I will take your response as a YES!

If you could please get back to me and actually PROPERLY ANSWER my queries, I would be grateful. It is clear to me that the Council has done its best to get away with providing minimal information to the public in order to push through some half-baked county-wide DCO which is a joke on paper and which I cannot see standing up to close legal scrutiny in a court of law.

Unless you can provide clear evidence that you have followed the requirements of the Defra guidelines properly, then I must assume that the DCO you claim to have introduced right across Cornwall is completely invalid.

I look forward to hearing from you.

Yours sincerely

Penny Bunn (Ms)

Yours sincerely,

Penny Bunn

Freedom Of Information Mail, Cornwall Council

Dear Ms Bunn

 

We are sorry to hear that you were not happy with the response to your
recent request for information under the Environmental Information
Regulations 2004.

 

In order to fully reconsider your request and the response provided we
will now undertake an internal review.  Please note that the case number
remains as 101001116568 which we would kindly as you to quote on all
correspondence.

 

Kind regards

Support Advisor
Freedom of Information
Chief Executives Directorate
Cornwall Council

Central number 01872 322223

Room 4S, Treyew Road, New County Hall, Truro. TR1 3AY.
[1]www.cornwall.gov.uk

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Dear Freedom Of Information Mail,

101001116568

Would you please stop wasting everybody's time?!

You have NOT provided the information I requested and I have written back to you to ask that you kindly do so.

I suggest that there is NO reason why you should not provide it, unless you have disregarded Defra guidelines and flouted the law.

It seems to me that there can be no other plausible explanation for the delaying tactics, deliberate 'misunderstanding' and determination to cause as much exasperation as possible, which have been the hallmarks of your conduct since I initially contacted you more than six months ago.

I already know that any 'internal review' you claim to conduct will conclude that you have fulfilled your duties correctly, because it seems you are more interested in your own self-preservation than you are in behaving in a decent and honest manner.

The internal review - I am sure - will be as farcical as the rest of the 'procedures' you claim to have followed since I initially contacted you.

Therefore, I will await the outcome with absolutely no expectation whatsoever of decent and fair conduct on your part.

Yours sincerely,

Penny Bunn

Dunhill Eleanor, Cornwall Council

1 Attachment

Dear Ms Bunn,

 

Please find attached a letter in relation to the internal review of the
above request.  

 

Kind regards,

 

 

Eleanor Dunhill

Legal Secretary & FOI Rep

Legal Services, Cornwall Council

Tel: 01209 614304

Fax: 01209 614099

Internal: 464304

DX144380 Camborne 3

 

[1][email address]

 

East Wing, First Floor, Council Offices, Dolcoath Avenue, Camborne, TR14
8SX

  

[2]www.cornwall.gov.uk

 

Please let me know if you need any particular assistance from us, such as
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Dear Eleanor Dunhill,

Your latest response to my FOIA request was exactly as I expected and I will obviously now be referring this to higher authorities.

I wish to make some things clear, however:

1) At NO POINT have I requested that you conduct an Internal Review and this has been initiated and conducted entirely by yourselves.
2) In telephone conversations with Karen North AND in writing, I have made clear repeatedly that I have not requested legal advice from you, but was trying to get you to confirm that you do understand the law. Your responses clearly demonstrate that in fact, YOU DO, and that Cornwall Council has simply tried to circumvent the requirements of that law to suit its own requirements.
3) The law demands that before you introduce a DCO, the council shows it can justify there is a problem with dogs in the area stipulated.

a) Your Director's opinion is not sufficient justification.
b) Your refusal to answer my questions regarding littering and the dangers inherent in the faeces left by wild animals is confirmation that the Council recognises the discrimination and extreme, unjustified bias it has shown against dog owners.

Therefore, you have been unable to show that there is any real problem with dogs and therefore, you cannot justify your actions in introducing a 'county-wide' DCO. Therefore, it cannot be legal or valid.

4) Every other council, right across Cornwall, has conducted a proper public consultation before introducing any kind of DCO. The fact that you have been involved in sanctioning some of these, and the fact that you are very much aware that these public consultations have taken place, show that your actions in putting misleading, small-print ads in ONE regional newspaper and not properly informing the public that a public consultation was underway were deliberately styled to ensure that the public was not aware of your actions.

5) It would have cost a fortune to conduct a proper public consultation, as every other council has done and as you are clearly aware you should have done, too. It would have cost a fortune to ensure that proper signage was erected right across the county, ensuring that the general public was properly informed that a county-wide DCO was in place. I suggest that the fact you seem to have spent absolutely nothing on either proper consultation OR appropriate signposting clearly shows that the Council has tried to take short-cuts with the law and to misappropriate it for its own purposes. These things, in and of themselves, demonstrate that your 'county-wide' DCO is neither legal nor valid on any level.

More than any other council, Cornwall Council has shown itself to be conducting a vendetta against dog owners, which has no foundation in truth and which cannot be justified.

I do not consider your 'county-wide' DCO to be valid on any level, and it is plain to me, from your responses to my queries, that you are aware it is neither valid nor legal.

Yours sincerely,

Penny Bunn

Dunhill Eleanor, Cornwall Council

Dear Mrs Bunn,

Thank you for your recent email. The comments while they are noted should you consider we have not complied with your request for information you should refer you request to the information commissioner.

Kind regards

Eleanor Dunhill
Legal Secretary & FOI Rep
Legal Services, Cornwall Council
Tel: 01209 614304
Fax: 01209 614099
Internal: 464304
DX144380 Camborne 3

[email address]

East Wing, First Floor, Council Offices, Dolcoath Avenue, Camborne, TR14 8SX

www.cornwall.gov.uk

Please let me know if you need any particular assistance from us, such as facilities to help with mobility, vision or hearing, or information in a different format.

The Cornwall Council does not accept service of any legal proceedings or process via e-mail or other electronic device.

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show quoted sections

Dear Ms Dunhill

I am well aware of the procedures to follow, thank-you, and - in marked contrast to Cornwall Council, it seems - am happy to follow the law to refer this case to the appropriate authorities and register the strongest complaints about the council's actions with others who may do something about it.

You may or may not be interested to know that your attitude has done a great deal to damage the reputation of Cornwall Council, and of Cornwall as a whole. Several people have described yours as being "the worst of all councils" and if this is a title you have sought to earn yourselves, I'm sure you'll be delighted at your success in doing so.

You are conducting a hate campaign against dog owners, which has absolutely NO basis in fact and cannot be justified. Please be assured that the relevant authorities with ALL be involved and that your conduct will be described in detail in a larger document about misapplication of Defra guidelines, which will be submitted to the Secretary of State for the Environment.

I hope very much that a full investigation will eventually be conducted into this matter and that those responsible will be held accountable for their conduct. Dogs have been a recognised and much-loved part of everyday life in this country and for Cornwall Council to be conducting such a vendetta against dog owners is just despicable and discriminatory in the extreme.

Yours sincerely,

Penny Bunn

Dunhill Eleanor, Cornwall Council

Thank you for your email. I am out of the office returning on 4 March
2014,  I will not therefore be checking my emails until I return. For
urgent messages, please contact Michaela Pollard on 01209 614060 or
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