Petition: Pewsey No Boxing Day Parade

Pewsey Parish Council – No Tedworth Hunt Boxing Day Parade

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Letter

Dear Councillors

We are writing to you in advance of the Tedworth Hunt meet on Boxing Day. The purpose of this letter is to make you aware of the legal risks associated with such an activity and to remind you of your legal obligations.

Background

As you will likely be aware, hunts often gather in public spaces and on public roads. Sometimes they will parade through the street and gather at a meeting point, such as a town square or a pub. Some hunts employ marshals who close the roads and direct traffic around or away from the hunt. In some cases, these are untrained individuals, rather than experienced traffic marshals.

Members of the public often attend to watch the gathering, along with the riders, huntsman and hunts staff. Hunts include up to several dozen horses and roughly 30-40 hounds. Hounds are often not kept on leads.

Some hunts serve and/or sell alcohol to the hunt supporters and members of the public. There have been reports of people at these events consuming alcohol and subsequently riding their horse, quad bike or other vehicle.

In addition a variety of dangerous incidents have been reported, including dangerous driving, vehicles blocking the road, horses on the wrong side of the road and children placed on horseback with no helmet or other protective equipment.

The law

These events engage a number of pieces of legislation:

Road closures:

Section 137 of the Highways Act 1980 states that “if a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence and liable to a fine..” Whilst section 137 permits obstruction of a highway “lawful excuse”, in other words, if the obstructor(s) has/have permission such as a Temporary Traffic Regulation Orders, then no offence will be committed. If the obstructor(s) do not have a lawful excuse, an offence is committed.

Under section 130(1) of the Highways Act 1980, (HA) , there it is a statutory duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority.

Even where they are not the highway authority, under section 130(2) HA, a council must assert and protect the rights of the public to the use and enjoyment of any highway in their area. However, notwithstanding this power, under section 130(3) HA, it is the duty of a council who are also the highway authority to prevent, as far as possible, the stopping up or obstruction of:

a. the highways for which they are the highway authority and
b. any highway for which they are not the highway authority, if, in their opinion, the stopping up or obstruction of that highway would be prejudicial to the interests of their area.

The wording of these rights and obligations of authorities is important. Highway authorities have a duty (i.e. an obligation) to assert and protect the rights of the public to use the highway. Councils who are also highway authorities have a duty to prevent the obstruction of highways for which they are responsible. Councils also have a duty to prevent, as far as possible, the obstruction of highways for which they are not the highway authority if they believe that the obstruction of that highway would be prejudicial to the interests of their area. If a parish council notifies a highway authority that there has been an obstruction, that highway authority has a duty to institute proceedings against the obstructor. Councils also have a general power (i.e. discretion to act) to assert and protect the rights of the public to use the highway.

Section 120(1)(b) Local Government Act 1972 applies specifically to decision-making in relation to the acquisition of land, as opposed to the use of land after acquisition. However, this provision was considered in the case of R v Somerset County Council 1995 ex parte Fewings, in which the Supreme Court confirmed that it was applicable to decisions about the use of land after acquisition (even, in that case, 70 years after acquisition). This case (which, fortuitously, related to stag hunting) confirmed that the test to be applied is not a moral one, and if councils make decisions on personal morals alone they will not be acting lawfully. The general requirement is to consider the “benefit, improvement or development of their area” as a whole when making decisions about land use.

Health and Safety

The Health and Safety at Work etc. Act 1972 (the “HSWA”) provides that “it shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety”.

The HSWA will apply to any hunt which employs staff. A hunt does not need to be a limited company in order to employ people, but this will be something to consider on a case-by-case basis depending on the make-up of the hunt. A person (or employer) who fails to discharge their duty under section 3 commits an offence.

The Management of Health and Safety at Work Regulations 1999  create further requirements for employers, including the requirement to assess risks to members of the public arising out of or in connection with the conduct of the organisation and the requirement to make and give effect to appropriate measures for the effective planning, organisation, control, monitoring and review of preventive and protective measures.

Loose hounds

The Dangerous Dogs Act 1991 creates the offence of being in charge of a dog who is dangerously out of control. A dog is considered to be dangerously out of control if there are grounds for reasonable apprehension that a person or assistance dog will be injured by them.

The Highways Act 1980 makes it an offence to allow dogs to stray on or at the side of a highway.

The Dog Control Orders (Prescribed Offences and Penalties, etc.) Regulations 2006 (DCOR) and the Anti-Social Behaviour, Crime and Policing Act 2014, (ABCPA) grant powers to local authorities to make dog control orders creating offences of failing to remove dog faeces.

Section 27 of the Road Traffic Act 1988 provides that “a person who causes or permits a dog to be on a designated road without the dog being held on a lead is guilty of an offence”.This is not a blanket requirement to keep dogs on leads; rather, it provides that dogs must be kept on leads on “designated roads”. Designated roads are defined as “a length of road specified by an order on behalf of the local authority in whose area the length of road is situated”. Whilst section 27 further provides that the orders made by local authorities can exempt dogs who were “at the material time in use under proper control for sporting purposes”,  the hounds are not being used for a “sporting purpose” while at the meet (which would be the “material time”).

Sale of alcohol:

Under the Licensing Act 2003, a Temporary Event Notice (“TEN”) is required to carry out a “licensable activity”, which includes selling alcohol or serving alcohol to members of a private club, for a period not exceeding 168 hours (7 days). Carrying out a licensable activity without a licence, or otherwise selling alcohol by retail without authorisation, is a criminal offence. A person found guilty is liable on summary conviction to imprisonment for a term not exceeding 6 months or an unlimited fine or both.

A TEN may be obtained by application to the local authority no later than 5 working days before the event begins.

Horses

I wish to draw your attention to the inherent dangers posed by horses, especially when they are amidst bustling crowds and congested spaces. Horses can be unpredictable animals, and when confronted with unfamiliar surroundings and loud noises, they may exhibit behaviors that could jeopardize public safety. Instances of horses bolting, kicking, or becoming agitated are not unheard of during crowded events, potentially leading to serious injuries or accidents involving innocent bystanders.

Given that these parades take place in public spaces, including areas frequented by children and vulnerable individuals, it is imperative that these concerns are addressed. The safety of the public should be at the forefront of your decision making, and I implore you to consider the potential risks these events pose to public well-being.

The Highways Act 1980 makes it an offence to deposit dung on a “made-up carriageway”. This means any road which has been made suitable for use by vehicles. Further an offence will be committed if a person using the highway is injured or endangered by that horse.

The Town Police Clauses Act 1847 creates a number of offences, including riding furiously any horse or leading, riding or fastening any horse so that s/he stands across or upon any footway.

Riding a horse while under the influence of alcohol is a criminal offence. The prohibition is contained within the Licensing Act 1872. This provides that “Every person . . . who is drunk while in charge on any highway or other public place of any carriage, horse, cattle, or steam engine, or who is drunk when in possession of any loaded firearms, ... shall be liable to a penalty not exceeding [level 1 on the standard scale], or in the discretion of the court to imprisonment ...”

Next steps

In view of the statutory duties placed on the council outlined above and the volume of legislation the council need to consider in relation to the hunt to enable them to comply with these duties, we are asking you to reconsider granting permission to the Tedworth Hunt to use your land. The council has a positive duty to protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority  and any highway for which they are not the highway authority, if, in their opinion, the stopping up or obstruction of that highway would be prejudicial to the interests of their area.

In the case of Kent and Newman (Claimants) and Arun District Council (Defendant) and Fontwell Racecourse (Interested Party) and Animal Protection Agency (Intervener) 2015, the court decided the following:

The Council is a public body; it has a duty to do what it properly can to prevent the commission of offences by legitimate means. Warning an organisation such as the racecourse that its premises might be hosting an event at which unlawful activity might take place is an entirely proper course to have taken.

We are asking you to reconsider granting permission to the Tedworth Hunt to use your land

We would be grateful if you could inform Action Against Foxhunting and Protect the Wild of the action/s you intend to take.

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