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'FOOTPATH OBSTRUCTING' ROTTWEILERS ACQUITTED

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Case no: CO/1249/96 ...
Case no: CO/1249/96

Kent CC has failed in a high court bid to stop the 'slavering jaws' of a pair of Rottweiler dogs strike fear into the hearts of ramblers using a Meopham footpath.

Two senior judges ruled that the dogs' owner, Graham Holland, had been rightly acquitted by local magistrates of two charges of unlawfully obstructing the footpath.

Mr Justice Smedley said: 'The magistrates were entitled to find as they did that any protrusion of part of the dogs' head was indeed so minimal in time and degree that it could not be said to amount to a physical obstruction.'

Kent CC took Mr Holland to court after rights of way officer, Anne Waugh, was put in fear by the Rottweilers as she walked along the footpath on February 7 last year.

Mr Holland's home in Woodhill, Meopham, has a 100-metre wire-mesh fence adjoining the footpath, and behind it on that day were the Rottweilers and two Terriers 'barking furiously'.

'As she walked along the pathway the Rottweiler dogs were jumping at the fence less than three feet away from her.

'On some occasions, the dogs' front paws were resting on top of the top rail, and the head was over the top, with the jowls protruding beyond the line of the fence.

'She was afraid of the dogs catching her arm, she was too frightened to walk the full length of the path but went back the way she had come'.

Mr Holland was charged before Gravesham magistrates on two counts, alleging that he 'without lawful authority or excuse wilfully obstructed the free passage along the footpath through the presence of Rottweiler dogs'.

But the magistrates ruled in October last year that Mr Holland had 'no case to answer', a decision upheld by Mr Justice Smedley, sitting with Lord Justice Schiemann today.

Lord Justice Schiemann remarked: 'There were some extremely noisy and essentially worrying dogs just off the footpath fenced in and bellowing away and putting people in fear.

'The question is whether that can amount to an obstruction of the highway.' But the judges agreed with the magistrates that, 'to regard the creation of fear as amounting to an obstruction would be to stretch the meaning of the word too far'.

But Mr Justice Smedley added: 'If, in the view of the local authority, the use which is being made by Mr Holland amounts to a common law nuisance, then it is open to them to consider taking steps, either civil or criminal, to put an end to it.

'The common law offence of public nuisance still exists and its flexibility can be seen by the variety of situations covered by it.

'I express no view as to whether such action is appropriate, that is for the local authority to consider and, if taken, for another court to pronounce upon.'

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