Barnett and Shire of Busselton

[2009] WASAT 93

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT:   LOCAL GOVERNMENT ACT 1995 (WA)

CITATION:   BARNETT and SHIRE OF BUSSELTON [2009] WASAT 93

MEMBER:   MR R EASTON (SENIOR SESSIONAL MEMBER)

HEARD:   6 APRIL 2009

DELIVERED          :   12 MAY 2009

FILE NO/S:   DR 438 of 2008

BETWEEN:   ROGER CHARLES BARNETT

Applicant

AND

SHIRE OF BUSSELTON
Respondent

Catchwords:

Local government - Local law relating to the keeping and welfare of cats - Permits required for the keeping of more than two cats - Application for keeping five cats - Registration of cats - Responsible cat ownership - Complaints and objections - Nuisance - Roaming - Home range of cats - Predators - Wildlife - Conditions

Legislation:

Local Government Act 1995 (WA), s 9.7(1)(a)

Result:

Application for review allowed and a permit is granted for the keeping of five cats subject to conditions

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

Respondent:     Ms B McGinty (Acting as Agent)

Solicitors:

Applicant:     Self-represented

Respondent:     Shire of Busselton

Case(s) referred to in decision(s):

McLeod and Shire of Harvey [2007] WASAT 44

Robins and Shire of Harvey [2005] WASAT 28

Ruzics and City of Joondalup [2007] WASAT 314

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. This matter involved an application for review of the refusal of an application to keep more than two cats at 33 Campion Way, Quindalup.

2. In 2001, a local law was gazetted by the Shire of Busselton that required a permit to keep three or more cats.

3. The Shire of Busselton refused an application by Mr Barnett to keep five cats.  The refusal was based on complaints and the nature of the location.  The Shire of Busselton was concerned about the impact of the cats on wildlife in nearby reserves that were well within the roaming range of the cats.

4. The local law describes a range of matters that the Shire was to take into consideration, as well as minimum conditions for any approval of a permit.

5. The Tribunal found that with appropriate conditions it was reasonably possible to meet the objectives of the local law.

6. The Tribunal set aside the Shire's decision and granted the permit subject to conditions.

Introduction

1. These proceedings involve an application brought by Mr Roger Charles Barnett (applicant),  pursuant to s 9.7(1)(a) of the Local Government Act 1995 (WA) (LG Act), for review of the decision of the Shire of Busselton (Shire) made on or before 11 August 2008 to refuse permission to keep two or more cats at 33 Campion Way, Quindalup (premises).

2. The background to this matter commenced on 1 July 2008 when the Shire received a complaint about the number of cats on the applicant's premises.  After some communication between the Shire and the applicant, on 7 July 2008 a ranger of the Shire attended the premises and handed the applicant's wife an application form for a permit to keep more than two cats.  At the same time the ranger issued two cautions, one for having unregistered cats and a cat infringement notice for 'failure of an occupier to hold a permit'.  The application to keep five cats (Dora, Muffin, Tiglette, Cinnamon and Deville) was lodged on 8 July 2008 and subsequently refused.

3. In the letter of refusal, the Shire required the removal of excess cats before 25 August 2008 and advised that 'due to the nature of the location and considering the objections received from neighbouring properties we have no alternative but refuse your application'.

4. It is not entirely clear what happened between the date of the Shire's letter of refusal and 13 November 2008 when the Tribunal received the application for review of the Shire's decision.  During the final hearing, evidence was submitted (not contested by the applicant) that:

   During a directions hearing before the State Administrative Tribunal on 28 November 2008 Mr Barnett indicated that he would do certain things on his property in support of his application.  He stated that he was having all of his cats de-sexed over the coming weeks and that he would be keeping all of his cats indoors unless they were on a leash.  He also said he would provide a list of conditions that he would be willing to abide by and proof of the sterilisations.

5. No further information was received by the Shire and on 11 February 2009 the matter was reconsidered by the council of the Shire which unanimously resolved to refuse the application.

Premises and locality

1. The submitted evidence lacks precision with reference to some of the site information.  It is sufficient for the purposes of this review to note that the premises consist of a single dwelling on a lot of approximately 800 square metres.

2. The premises are one of a large number of suburban‑style dwellings located on a narrow strip of land between the Indian Ocean and the Toby Inlet.  The Toby Inlet is a long narrow body of water that runs parallel to and between Caves Road and the Indian Ocean.

3. This narrow strip of land is surrounded by the foreshore reserve to the north and east, the Toby Inlet reserve to the south, and Reserve 46 Quindalup to the west.  The dwellings are contained between Geographe Bay Road facing the foreshore reserve and Campion Way facing the Toby Inlet reserve.

The legislative framework

1. The Shire of Busselton Local Law Relating to the Keeping and Welfare of Cats (local law), was gazetted on 16 March 2001 under powers conferred by the LG Act.

2. The four objects of the local law are to -

   (a)promote responsible cat ownership;

   (b)reduce the nuisance to the community caused by cats;

   (c)limit the damage to and loss of wildlife caused by cats; and

   (d)promote the welfare and safety of domestic cats.

3. Section 4 of the local law sets out various requirements relating to the identification and registration of cats; specifically cl 4.1 requires 'Subject to Clause 4.7, a keeper of a cat must register the cat with the Local Government and identify the cat in accordance with this Section 4'.  Clause 4.7 provides for exemptions, such as cats less than three months old, cats in the district less than 28 days, and cats at pet shops or veterinary surgeries.

4. Clause 5.1 requires that:

   Subject to Clause 5.2, an occupier is required to have a permit -

   (a)To keep 3 or more cats on any premises;

   (b)To use any premises as a cattery.

5. Clause 5.2 provides limited exemptions not relevant to this review.  Clause 5.4 allows the Shire to either approve an application for a permit, subject to conditions, or refuse an application.

6. Clause 5.5 provides that:

   In determining an application for a permit the Local Government may have regard to -

   (a)The physical suitability of the premises for the proposed use;

   (b)The suitability of the zoning of the premises for the proposed use;

   (c)The environmental sensitivity and general nature of the location surrounding the premises for the proposed use;

   (d)The structural suitability of any enclosure in which any cat is to be kept;

   (e)The likelihood of a cat causing nuisance, inconvenience, or annoyance to the occupiers of adjoining land;

   (f)The likely effect on the amenity of the surrounding area of the proposed use;

   (g)The likely effect on the local environment including any pollution or other environmental damage which may be caused by the proposed use;

   (h)The applicant's infringement history with the Local Government or any other Local Government; and

   (i)Such other factors which the local government may consider to be relevant in the circumstances of the particular case. …

7. Clause 5.6 provides that:

   The additional conditions contained in Schedule 1 of this Local Law shall form part of the conditions of any permit issued under this Section 5.

8. It is clear that the combined effect of s 4 (registration) and s 5 (permits) is that registered cats do not require a permit unless there are more than two cats.  However, all cats that require a permit must be registered.  This is clearly stated in cl 5.7:  'Any cat to which a permit relates must be a registered and identified cat'.

The Shire's case

1. In addition to the background described earlier in these reasons, Mr Owen Anderton, a ranger employed by the Shire, provided further evidence concerning this review.  The application for a permit was advertised and two objections were received.  One, dated 24 July 2008, stated:

   We have cats coming onto our property now without any more disturbing small birdlife.  Cats should be kept in owner's property.  We do not want more cats!  [sic]

2. The second objection, dated 31 July 2008, stated:

   We strongly oppose to keeping of any cats at 33 Campion Way Quindalup.  They are a danger to wildlife living along Toby's Inlet e.g. Quenda, Possums, Blue Wrens, small Parrots.  The number of wild life has been getting less since the increase of cats - the dogs bark at night.  [sic].

3. Mr Anderton also referred to two telephone complaints; the first was received 8 January 2009 referring to '9 cats wandering from 33 Campion Way, eating native wildlife'.  Fours days later another complaint was received.  It is not clear whether this was the same complainant or whether the complainant(s) was one of the original objectors, but the number of observed cats was now 10 and 'they were constantly wandering onto the complainant's property and destroying wildlife'.

4. In addition to the complaints and objections, Mr Anderton provided evidence that the applicant had placed a notice in the local newspaper on 14 January 2009, describing two lost cats.  He provided further evidence that the applicant had filed a lost cat form, dated 9 February 2009, referring to another lost cat.  Significantly, this cat 'Misty' was not one of the five registered cats.

5. In his witness statement, Mr Anderton concluded that the premises were not a suitable location for the permit because of the close proximity to environmentally sensitive areas.  Furthermore, he stated:

   The applicant has been given opportunities in the past to demonstrate that a structure could enclose the cats, however, he has failed to provide such an enclosure.  In the event that the applicant proposes a structure to enclose the cats during the course of the hearing it is unlikely that the applicant will comply with any suggested conditions or structures to enclose the cats due to the history of non-compliance.

6. The Tribunal had the benefit of the evidence of Mr William Oldfield, an environmental scientist employed by the Shire as an environmental officer.  Mr Oldfield described the variety of wildlife living in the locality with particular reference to the brushtail possum, the western ringtail possum (an endangered species) and the southern bandicoot.  He referred to scientific studies attached to his witness statement describing the range of cats as approximately 17 hectares during the day and 28 hectares at night.  Mr Oldfield stated that the local reserves would be well within the generally accepted home range of the cats.  He further referred to the killing capacity of cats and that their prey was generally in the range of 35 grams to 8 kilograms; a range that includes a large variety of native fauna.

7. Mr Oldfield was not able to provide any evidence of the density of native fauna within the local reserves or whether the presence of cats was having any impact on the density.  However, he did refer to the papers attached to his witness statement and that the average domestic cat left free to roam, despite being fed daily, kills about 25 native animals per year.

8. Mr Oldfield was not able to clarify the significance of the figure (25 native animals per year for a domestic cat left to roam) in relationship to the density (numbers/defined area) of the native wildlife and how many die naturally per annum or are killed on the roads.

9. He noted:

   The Shire has management plans for the Toby Inlet Foreshore and Waters, south side of Campion Way and Reserve 46, West side of Campion Way.  These plans recognise these areas as important habitat for native fauna and therefore contain recommendations which aim to control all non native predators such as Foxes, Dogs and Cats.

10. Mr Oldfield then described practices recognised nationally for responsible cat ownership as promoted by the Australian National Parks and Wildlife Service.  The four primary practices he described were:

    1)desexing cats;

    2)limiting the number of cats on a property;

    3)keeping cats inside or, if outside, in an enclosed area; and

    4)identifying cats.

11. Mr Oldfield noted that all these practices are recommended in the Shire's local law for cats.  However, he did express some concerns about the management of cats if more that two cats are kept on a property.  He stated:

    While confining cats to indoors, day and night, will stop impacts to native wildlife it is likely to present a health problem.  Having more than two cats confined to a residence requires a higher level of management.  The cats need to have an adequate area to roam in yet cannot be allowed to wander off the property.  This generally means a special enclosure with suitable areas for feeding, climbing and defecating is needed.  The enclosure needs to be regularly cleaned …

    Failure to maintain the premises/residence in this manner may result in a breach of the Local Health Law …

12. During the hearing, Mr Oldfield agreed that if the four primary practices were put in place, together with proper management and cleaning, then the proposal to keep five cats would be acceptable.  However, he then confirmed the position taken in his witness statement where he stated:

    The preferred approach to any situation that may lead to a breach of the Health Act is not to allow the activity in the first place, especially where it serves no commercial purpose and does not demonstrate a professional level of management.  The evidence provided in the witness statement of Owen Anderton indicates that on numerous occasions the applicant has not managed to keep his cats on the premises … and indicates that the level of management towards the health local law is likely to be low.

The applicant's case

1. Mr Barnett provided limited written information to the Tribunal and during the hearing it became apparent that the processes of public administration are not fully appreciated by Mr Barnett, although it is fair to observe that since late 2008 he has been developing a growing awareness of public administration as it relates to cats.  Since the original complaints, all five cats have been registered, and over a period of months, as funds became available, four of the cats have been desexed with the fifth and final cat scheduled for desexing when it is off heat.

2. Mr Barnett stated that he loves all animals and has worked in wildlife parks.  Of the five cats in question, Deville (approximately four years old) was the original cat.  Muffin (now three years old) was a wandering kitten that the family found and kept.  The remaining three cats were the result of a late night encounter between Muffin and a wandering tom.  Mr Barnett was not aware of the need for registration and, despite the three kittens, did not consider desexing.

3. Since being made aware of the local law, Mr Barnett stated that he has made reasonable attempts to comply:  all cats are registered; all have been or will be desexed; all cats are kept indoors and only let outside on a leash.

4. He confirmed that despite the claims of 10 cats, there are only five cats.  A sixth cat that escaped, as referred to in a newspaper advertisement, was a visiting cat and belonged to a relative.  The other missing cat, 'Deville', was captured by a person unknown who put a band around its thigh.  According to a statement by the vet in a local newspaper, 'this was an act of deliberate cruelty because the elastic band was doubled over which would have needed a bit of effort to hold the cat.'  Deville, one of the registered cats, is now a cat with only three legs.

5. When asked by the Tribunal why he had not responded to requests for information from the Shire, bearing in mind there was a possibility that the Shire might have granted the required permit, Mr Barnett described some events that had occurred in his life, late in 2008 continuing into 2009, which reasonably explained his tardiness in responding to the Shire.

6. Mr Barnett presented a plan of a proposed cat enclosure to the Tribunal and stated he would amend the plan if it did not meet the Shire's guidelines.

7. Mrs Barnett gave verbal evidence to the Tribunal supporting Mr Barnett's evidence and confirming that they are now managing the cats as required by the local law.

Consideration

1. This is the first matter that has required a decision by the Tribunal concerning a local law relating to cats.  Although it is premature to establish principles for dealing with cats, a reasonable starting point is to consider the principles described in McLeod and Shire of Harvey [2007] WASAT 44 (McLeod) where Member Mr P McNab said at [58]:

   The Tribunal has now published three decisions in the area of dog exemptions and it is respectfully suggested that sufficient general indicia have now emerged to indicate the type of considerations that primary decision-makers (that is, local authorities) ought to be having regard to in this regulatory area.  Thus, in the ordinary case, the Tribunal would expect any respondent Council to structure both their primary decision-making and their subsequent case in the Tribunal around such indica.

2. The Tribunal in McLeod approved the application to keep a third dog (in lieu of the permitted two dogs) on the premises.

3. In McLeod, at [52], Member McNab quoted from Robins and Shire of Harvey [2005] WASAT 28 (Robins) where, at [20], Member Mr B De Villiers said:

   It is understandable that a local government would require a well‑motivated proposal prior to it granting permission for more than two dogs to be kept on a premises.  The local government also has to take several factors into account for example the size and location of the property, fencing, shade, previous complaints from neighbouring residents, other public inputs and the risk that a precedent may be established that in time may lead to further complications, abuse or unhappiness. The council also has to consider factors that may justify the making of an exemption such as the particular circumstances of the applicants, the lack of previous complaints, the breed, the applicant's experience in handling dogs, and the motivation supporting the application for exemption.

4. The Tribunal in Robins approved the application to keep a third dog (in lieu of the permitted two dogs) on the premises.

5. The Tribunal has continued to apply the principles of McLeod in subsequent decisions.  For example, in Ruzics and City of Joondalup [2007] WASAT 314 the Tribunal approved an application for Ms Ruzics to keep six dogs at her residence. In Ruzics, at [25] - [26], Member De Villiers stated, in referring to the local authority's consideration of an application to grant permission for more than two dogs to be kept on a premises:

   There is a risk of nuisance and the local authority has an obligation towards the public to minimise the risk by regulating the number of dogs per premises.

   The local government must, however, apply its mind to each application … and cannot merely rely on a policy of two dogs per lot.

6. In this case, it is not clear what matters were considered by the Shire but, in the Shire's presentation of its case to the Tribunal, it relied on complaints and non-compliance with the local law on cats.  The complaints have significant relevance only if the cats are allowed to roam.

7. Some complaints related to the noise of cats, but it is not clear whether the noise was Mr Barnett's cats or whether the problem was noise of other cats on other properties.  The evidence presented to the Tribunal suggested the presence of at least two other roaming cats; one being a tom.  It is also possible the complaints related to the fact that the applicant's cats were not desexed at the time of the complaint.

1. The impact on the wildlife was related to the roaming ability of the cats.  A permit to keep more than two cats restricts the cats to the premises and thus protects wildlife on the adjoining reserves.  At the time of the application, the cats were able to reproduce; thus posing a potential future risk to wildlife.

2. Mr Barnett did not help his cause by his tardiness and an apparent failure to treat the applications to the Shire, and then the Tribunal, with sufficient respect.  On the basis of evidence presented to the Tribunal, there were understandable personal matters that were distracting Mr Barnett.  The Shire does not appear to have been aware of the personal circumstances and therefore to some extent it is understandable that the Shire refused the application for a permit to keep five cats.

3. Nevertheless, the Shire was obliged to consider the application on its merit and the net effect on nuisance, taking into consideration proposed actions by the applicant and the modifying effect of conditions.

4. In terms of nuisance, there are clear differences between cats and dogs.  As a whole, domestic cats are smaller than dogs and less threatening to most people.  On the other hand, cats climb more easily than dogs and it is more difficult to contain cats on a particular property.  Despite the differences, both are predators and both pose a risk to wildlife.

5. A notable common factor is the significant reduction of nuisance if the animals are contained on the applicant's property and managed with appropriate conditions.

6. The local law is quite clear on matters to be considered and the range of possible conditions.  In this case, the Tribunal is satisfied that all four objects of the local law on cats will be met if the permit is granted subject to conditions.

Conditions

1. As required by the Tribunal, the respondent prepared 'without prejudice' conditions (draft conditions) to be imposed if the Tribunal considers that approval of the application subject to conditions is appropriate.  The applicant did not dispute the draft conditions.

2. The proposed conditions were as follows:

   (1)the permit only relates to the cats Dora, Muffin, Tiglette, Cinnamon and Deville;

   (2)all cats are to be sterilized within 30 days of this decision;

   (3)the cats are to be kept registered;

   (4)the cats are to be confined to the house or other suitable enclosure whereby the cats cannot roam beyond the boundaries of the property;

   (5)The cats are not to be taken beyond the boundaries of the premises unless in a cage or on a leash;

   (6)the permit holder will have during the term of the permit adequate space for the exercise of the cats;

   (7)the property is to be kept clean of cat excrement;

   (8)the Shire receives no complaints from residents in the area, concerning noise or roaming problem;

   (9)the permit holder will not substitute or replace any cat once that cat dies or is permanently removed from the premises; [and]

   (10)the permit holder must advise the Shire if they change address or one or more of the cats die.

3. As mentioned previously in these reasons, cl 5.6 of the local law states that 'the additional conditions contained in Schedule 1 of this local law shall form part of the conditions of any permit'.

4. Proposed conditions 6 and 9 are slightly reworded versions of conditions 2 and 4 of Sch 1.  The Tribunal will retain the conditions but reworded to match the words in Sch 1.  Condition 4 is similar to condition 1 in Sch 1.  However, proposed condition 4 contains more detail and will be retained as proposed, except to require that the applicant is to seek approval for the enclosure within 30 days of the date of this decision and that the enclosure is to be built no more than 30 days after approval of the proposal by the respondent.

5. The Tribunal does not support proposed condition 8 as it appears to delegate assessment and administration of the permit to the neighbours.

6. During the hearing, the respondent proposed an additional condition concerning access to the property for Shire rangers.  There was no proposed wording for the condition nor was there any evidence presented to suggest that rights of access do not already exist under Acts relating to local government and health.  The local law does not deal with access, which suggests either a serious oversight or that the authors of the local law believed it was unnecessary to provide for access.  If it was considered unnecessary in general terms to provide for access when the local law was adopted, there were no compelling reasons presented in this hearing that suggested this application required special treatment.  If it was an oversight, the respondent has not provided evidence supporting the oversight; sufficient evident to that a correction is necessary or sufficient evidence to attempt a remedy.

Orders

1. The Tribunal makes the following orders:

   1.The application for review is allowed.

   2.The decision of the respondent to refuse a permit for five cats is set aside and a new decision is substituted granting the permit for the five cats subject to the following conditions:

   (i)the permit only relates to the cats Dora, Muffin, Tiglette, Cinnamon and Deville;

   (ii)all cats are to be sterilised within 30 days of this decision;

   (iii)the cats are to be kept registered;

   (iv)the cats are to be confined to the house or other suitable enclosure whereby the cats cannot roam beyond the boundaries of the property.  The applicant is to seek approval for the enclosure within 30 days of the date of this decision and that the enclosure is to be built no more than 30 days after approval of the proposal by the Shire of Busselton;

   (v)the cats are not to be taken beyond the boundaries of the premises unless in a cage or on a leash;

   (vi)the keeper will have, during the term of the permit, adequate space for the exercise of cats;

   (vii)the property is to be kept clean of cat excrement;

   (viii)without the consent of the local government, the permit holder will not substitute or replace any cat once that cat -

   (a)dies; or

   (b)is permanently removed from the premises; and

   (ix)the permit holder must advise the Shire if they change address or one or more of the cats die.

I certify that this and the preceding [61] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR R EASTON, SENIOR SESSIONAL MEMBER