Outdoor Cats and Statutory Nuisance

Rev'd Prof Helen Hall, Nottingham Law School https://www.ntu.ac.uk/staff-profiles/law/helen-hall

There are many positive observations that can be made about cats. They are graceful, intelligent and (sometimes, at least) soothing companions. However, not even the biggest feline fan could claim that they are biddable, or even vaguely cooperative. Cats generally do whatever they are inclined to do, with zero interest in the opinions of surrounding humans. This is perhaps one reason why the Common Law recognises that cats have a “right to roam”. This was affirmed in Buckle v Holmes [1926] 2 KB 125, where the Court of Appeal ruled that a cat’s owner could not be held liable in trespass for the animal’s activities.

It is true one hundred years after this decision, there are debates about the pros and cons of allowing cats outside to wander freely, both from an environmental and animal welfare perspective. It is striking that in the same judgment, Banks LJ took it for granted that dogs should also be allowed “a reasonable amount of liberty” and that it was neither appropriate nor lawful to ordinarily keep them shut up. Clearly, ideas about animal welfare change over time, and vary between different cultures. The ethics of indoor versus outdoor cats are beyond the scope of this blog. As a matter of law, free range, outdoor cats are permitted, and trespass to property is not a relevant concern.

However, in ruling given just before Christmas 2025, the High Court considered cats in relation to statutory nuisance. Strikingly too, the case did not involve animal hoarding, or a large population of feral cats having taken up residence in a building. All of the trouble arose from just two well cared for family pets. The Claimant challenged a decision by the Defendant Local Authority, that these cats fouling in his garden did not amount to statutory nuisance under s79 of the Environmental Protection Act 1990 (“EPA”).

Jarman HHJ KC found against the Defendant Local Authority, on the basis that the council’s decision-making process had been flawed. He concluded that cat faeces could amount to “deposits” for the purposes of s79, rejecting an argument that precedents affirming the feline right to roam were incompatible with this. Had Parliament wished to exclude cat excrement from the section, it could have made a specific exception, as it has done for domestic chimney smoke in prescribed circumstances.

The Defendant was also found to be wrong in failing to consider the health implications of the fouling, both in terms of physical disease, and the Claimant’s assertion that the need for constant cleaning was affecting his mental health. The Claimant was also found to be unreasonable in having refused to review and consider CCTV footage unless it featured a cat essentially in flagrante delicto, in the very act of fouling. Scenes of cats emerging from behind flower pots where deposits were found ought also have been assessed.

A more technical legal point related to the Defendant having considered the Common Law position in relation to free range cats, and animal welfare concerns about confining previously outdoor cats. These matters were not relevant for the purposes of determining whether a statutory nuisance under the EPA had occurred. If criteria in s79 were satisfied, then the local authority had no discretion, and was obliged to issue an abatement notice. There was no scope for the Defendant consider whether this response was proportionate, nor to vary the notice. Following R (Gary Ball) v Hinckley and Bosworth [2024] EWCA Civ 433 it was apparent that once a local authority had concluded that the requirements for statutory nuisance were met, only the Magistrates Court had the power to consider the circumstances more broadly, if faced with a defence, a criminal prosecution, or an appeal. Effectively therefore, the exercise of discretion lay at that second stage with the court, and not the local authority.

In light of all of the above, the local authority was tasked with going back to retake the decision, applying the relevant principles and considerations outlined. The judge was at pains to stress that nothing in his judgment should be taken as indicating whether or not the fouling complained of did in fact amount to a breach of section 79.

Examined holistically, the case is more relevant as a guide for local authorities in relation to the proper processes in decision-making than it is for cat owners, and it certainly should not be a source of undue anxiety for anyone who has pets. It is clear that the law continues to accept the reasonableness of giving cats access to outdoor space. Furthermore, there is little doubt that the feline population remain indifferent, or possibly contemptuous, towards human concerns. As Terry Pratchett observed “In ancient times cats were worshipped as gods; they have not forgotten this.”

Further Reading

Buckle v Holmes [1926] 2 KB 125

R (Gary Ball) v Hinckley and Bosworth [2024] EWCA Civ 433

R (Williamson) v Caerphilly CBC [2025] EWHC 3312 (Admin)