The following is a summary of circulars produced by the Chartered Institute of Environmental Health. Such circulars do not have the force of law but are customarily given considerable weight by local authorities when carrying out their legal responsibilities. This summary has been prepared by the CIEH for inclusion on this website. The website of the CIEH can be found at http://www.cieh.org.uk
Chartered Institute of Environmental Health Guidance on the Interpretation of the Pet Animals Act 1951
Material prepared July 2002 by Andrew Griffiths on behalf of the Chartered Institute of Environmental Health
One day sales
There is considerable variation in the way in which local authorities approach the "licensing" of fairs and bird auctions selling animals. Many Local Authorities, do not or will not, issue licences for these events. Others have however, issued licences for one or two-day events.
In an attempt to clarify the uncertainty, which has seen some licences issued in the past, the following information is the opinion of the CIEH. The CIEH cannot be held liable in the event of local decisions not reflecting these opinions.
The Pet Animals Act 1951 states that a person keeping a pet shop must be licensed. The keeping of a pet shop means carrying on at premises of any nature (including private dwellings) a business of selling pets. "Animal" includes any description of vertebrate. Pets must not be sold in streets or public places.
The 1983 Amendment Act prohibited the sale of pets in a public place such as a market. It states: "Any person carrying out the business of selling animals as pets will be guilty of an offence if it takes place from a stall or barrow in a market or public place."
Discussions have revolved around hiring of public halls for "Fairs", in which stallholders gather to sell animals. Questions have also been raised about the legality of selling animals in shopping malls. A recent example of this is licensing the sale of "aquababies", which are small Perspex cubes containing live fish, from kiosks or barrows in the public thoroughfare within shopping malls.
From the available legislation, CIEH takes the view that such sales are excluded from the licensing ability of local authorities. The issue of a licence in such circumstances might be regarded as ultra vires.
Licensing Act 1902: "Any place to which the public have access whether on payment or otherwise."
Indecent Displays (Control) Act 1981: "Any place to which the public have or are permitted to have access (whether on payment or otherwise)."
Environmental Protection Act 1990. Part VIII, s.149 (11): "Any highway and any other place to which the public are entitled or permitted to have access."
Dangerous Dogs Act 1991, s.10 (2): "Any street, road or other place to which the public have, or are permitted to have, access."
The main purpose of the 1951 Act is to allow for the licensing of "Premises" used for the business of selling animals as pets. It is clear that premises can, and should, be licensed by local authorities. The 1983 amendment made a distinction between premises and the practice of selling animals as pets in any part of a street or public place, or at a stall or barrow in a market.
A clear distinction has been drawn between "premises" and "public place". Pet shops that comply with the requirements of the Act should be licensed, but other attempts at sale should not be so licensed. Enforcement should be taken against those who sell without a licence. This will obviously be open to the interpretation of the courts.
The Oxford English Dictionary defines a market as "The gathering of people for the purchase and sale of provisions, livestock etc., especially with a number of different vendors - an open space or covered building used for this."
"Chartered markets" are covered for different circumstances and have particular rules but are not seen as directly relevant to this review.
Common law definition of a market: "A concourse of buyers and sellers."
The view of the Chartered Institute therefore, is that the sale of pet animals to the public in a public place cannot be licensed under the provisions of the Pet Animals Acts 1951 and 1983.
1. Teignbridge DC
The organiser of an event called "The creepy crawly show" (Entomological & herpetological display and sale) appealed against the authority's refusal to issue a pet shop licence. The appellant attempted to establish the argument that the event was not a market, but if it was a market, the law was only designed to make it unlawful to sell animals in "street" markets. Section 2 also prohibits the sale of animals from a public place, and although it was possible to establish that the intended venue (a racecourse) is a public place, the discussion centred around whether the event was a market.
The justices dismissed the appeal because the council did not have the authority to grant a licence. (Breach of s.2. "...public place or a market..")
2. White v. Kilmarnock and Louden DC (1991). Ref: 1991 S.L.T. (Sh. Ct.) 69
This is a Scottish case, which does carry persuasive weight in courts of England and Wales.
The original licence applicant appealed against the authority's refusal to grant a licence for the occupation a of unit in a market place to sell pets. The appeal was dismissed as the stall had none of the characteristics that would enable it to comply with Shops legislation and could not be regarded as anything other than a stall in a market, from which it was an offence to sell animals.
LGA Model Standards for Pet Shop Licence Conditions
This document was published by the Local Government Association.
Attention is drawn to P.3." Premises requiring licences", which includes "pet auctions and one day sales". At the time of preparation of the draft document, the CIEH objected to this being included in the document, but was not the lead body for its production.
It is clear that the inclusion of pet auctions and one day sales as requiring a licence is incorrect. This reference should be ignored.
It is important that licence refusals are followed up so that enforcement action is taken against those trading without a licence. It is likely to be those trading rather than the person hiring out the hall against whom enforcement action is taken.
The CIEH takes the view that the purpose of the Pet Animals Act 1951, as amended, was to afford protection to animals using the objects specified in section 1. Discretion is available in the application of conditions.
Pet shops should be fixed, defined premises within which standards of care may be monitored and maintained, with named individuals responsible for the care of those animals.
Temporary fairs and the like involve numerous dealers and changeable environmental conditions within which the animals are held awaiting sale. Little, if any, monitoring of these conditions takes place.
The CIEH takes the view that adequate welfare conditions cannot be achieved at temporary fairs and auctions. Given that they are illegal in concept, the CIEH urges local authorities to take enforcement action against vendors at such events.
Further specific guidance
1. Member-only events
In order to satisfy themselves that such events are exempt from the provisions of the Acts, local authorities will wish to establish that
a) the organisation responsible for the show is a bona fide club
b) members of the public cannot gain admittance [to the event] without membership
c) admittance by joining the club "on the door" must be on payment of a reasonable membership fee (a guide figure of at least £10 - £12 has been suggested)
d) there are clear benefits of membership of the club identified in the membership documentation
e) no sales of pet animals in the course of a business, take place at the event
2. The application of the Human Rights Act 1998
It is clearly unlawful for local authorities to act in a way which is incompatible with Convention rights, subject to certain exceptions. Exceptions include a situation where authorities are compelled to act in a certain way by legislation. In the absence of any certainty in the application of the Convention rights under the 1998 Act to pre-existing legislation, the CIEH has not considered any such application in its guidance. It will be for local authorities to form a view on this matter.
3. The application of the guidance to koi shows
The CIEH maintains the view that it is not open to authorities to license, under the Pet Animals Acts, the sale of pet animals to the public in a public place and that this inevitably includes Koi shows.
The Professional Koi Dealers Association has made representations to the CIEH to the effect that such shows have been operating successfully for about 20 years and that the welfare of Koi at such shows is properly protected.
This is not disputed; it will be for local authorities to decide if individual events are illegal and, if so, what action is appropriate should the show take place.
Further guidance in respect of Koi shows is in preparation.