CORRIGAN and SHIRE OF NORTHAM

[2009] WASAT 140

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: DOG ACT 1976 (WA)

CITATION:   CORRIGAN and SHIRE OF NORTHAM [2009] WASAT 140

MEMBER:   MR C RAYMOND (SENIOR MEMBER)

HEARD:   16 JUNE 2009

DELIVERED          :   22 JULY 2009

FILE NO/S:   CC 471 of 2009

BETWEEN:   DAMIEN CORRIGAN

ANIKA CORRIGAN
Applicants

AND

SHIRE OF NORTHAM
Respondent

Catchwords:

Dog Act 1976 (WA) - Application for review of decision refusing exemption from local law limiting number of dogs to be kept - Nature of evidence upon which Local Government and Tribunal may act

Legislation:

Dog Act 1976 (WA), s 26, s 26(3), s 26(5)

Result:

Application granted
Decision under review set aside and decision of Tribunal substituted, granting exemption subject to conditions

Category:    B

Representation:

Counsel:

Applicants:     In person

Respondent:     Mr C Hunt (As Agent)

Solicitors:

Applicants:     In person

Respondent:     N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The applicant applied under s 26(5) of the Dog Act 1976 (WA) to review a decision of the respondent. The respondent had decided to refuse an application for exemption from the limitation on the number of dogs which could be kept on a property in accordance with a local law.

2. The respondent's rangers, who had investigated the circumstances in which the dogs were being kept, and who had sought comments from neighbours, recommended that the application be granted.  The respondent rejected the application on grounds which were inconsistent with, or entirely unsupported by, the information provided to the Council by its officers.  On review, no evidence could be provided to support grounds based on recent dog attacks, nor on the basis that the approval would increase the workload on Ranger Services.

3. The Tribunal had to determine whether the remaining grounds were justified, namely, in effect that the applicants' residential lot was not suitable for the keeping of three dogs and that the impact of keeping three dogs on the applicants' property would have an adverse effect on the lifestyle and amenity of adjoining landowners.

4. The Tribunal commented generally upon the standard of evidence on which it would be appropriate for a local government and the Tribunal to act in relation to this type of case.

5. A proper analysis of the material placed before the Council, and before the Tribunal, demonstrated that there was only one objector, whose objection was based primarily on the extent to which the applicants' dogs barked, whereas 11 other neighbouring landowners had no complaint.  There was evidence of relationship difficulties between the objector and the applicants.  The Tribunal found that, on a balance of probabilities, the dogs did not bark excessively and that, in any event, arrangements had since been made for them to be contained in a fenced area well removed from the objector's property.

6. The Tribunal also found that the applicants' lot of some 4,741 square metres was much larger than any of the adjoining properties; it had been inspected by the Shire of Northam's rangers who had recommended approval of the application and there was no evidence to suggest that it was in any way inadequate for the keeping of the dogs.

7. The Tribunal, accordingly, granted the application for review, set aside the respondent's decision and substituted the Tribunal's own decision granting the approval subject to certain conditions.

The application and issues for determination

1. The applicants applied to the Tribunal under s 26(5) of the Dog Act 1976 (WA) (Dog Act) for the review of a decision by the respondent (Shire) refusing an application to grant an exemption from the provisions of a local law placing a limit on the number of dogs that may be kept on any premises within the Shire.

2. The application, and the parties respective statements of issues, facts and contentions, identified the issues for determination and the grounds on which the Shire Council refused the application.  They are:

   1.0Whether the keeping of three (3) dogs on the subject property (Lot 340 No 15 Burn Street, Northam) should be permitted in accordance with the Provisions of the Dog Act 1976 and the Shire of Northam Dog Local Law 2008.

   2.0Whether the keeping of three (3) large dogs on a residential lot is excessive.

   3.0Whether the keeping of three (3) dogs will increase the number of dog attacks involving large multiple dogs.

   4.0Whether the keeping of three (3) dogs will impact on the lifestyle and amenity of adjoining landowners as indicated within the objections received against the proposal.

   5.0Whether the keeping of three (3) dogs will involve additional workload on the Ranger Service.

3. The first issue encompasses the following four issues and the determination of them will provide the conclusion in respect of the first issue.

4. At the conclusion of the hearing on 16 June 2009, the Tribunal determined that the application for review should be granted.  The Tribunal indicated that it would provide written reasons for its decision at a later date and made the following orders:

   1.The decision of the respondent made on 18 March 2009 refusing the applicants' application for an exemption from the limitation of the number of dogs which they may keep on their property at 15 Burns Street, Northam is set aside and the following decision as set out in order 2 below is substituted.

   2.The applicants are granted an exemption to keep their 3 dogs being Duke a male 11 year old German Shepherd cross, Jade a female 11 year old Kelpie cross and Jessie, a female 18 month old Rottweiler cross at 15 Burns Street, Northam, subject to the following conditions:

   (i)The applicants must maintain and hold valid registrations for each dog kept on the premises.

   (ii)The exemption is only valid for the life of these three (3) dogs, should any of the dogs die, be sold, go missing or be given away it cannot be replaced prior to seeking further approval.

   (iii)No breeding of these animals for any commercial venture or financial gain.

   (iv)Any proven complaint regarding offences against the Dog Act 1976 or the Shire of Northam Dog Local Laws can result in the permit being revoked and the maximum number of dogs on the property being reduced to two (2) within 14 days.

   (v)At any time following approval, authorised Council Officers can inspect the subject property to check fencing, number of dogs and registration details.

   (vi)Compliance with the requirements of the Dog Act 1976, Regulations and any Local Law of the Shire of Northam

   (vii)Should any barking dog complaint be received and proven to be justified, Council can revoke the approval for the keeping of the 3rd dog.

   3.The Tribunal will provide written reasons for its decision.

5. These are the Tribunal's written reasons for the decision.

The hearing and relevant evidence

1. The applicants filed a document which can best be described as an amalgamated joint statement and statement of issues, facts and contentions.  Mrs Corrigan confirmed that the statements of fact made in the document were true and correct, and it was agreed that the factual statements would be regarded as the statement of Mrs Corrigan.

2. The Shire filed a statement of issues, facts and contentions and relied upon the written witness statement of Mr Chadd Bradley Hunt, the Shire's Executive Manager Planning and Development.

3. The parties each filed bundles of documents and it was agreed that the Tribunal would have regard to all documents which had been filed.

4. Both Mrs Corrigan and Mr Hunt supplemented their written statements with oral evidence at the hearing and were subjected to cross‑examination.  No issues of credibility arose and both witnesses gave their evidence in an entirely satisfactory manner.  Mr Hunt is to be complimented for the objective and professional manner in which he dealt with the matter.  He readily conceded that there was no evidence provided by the Shire which supported issues 3 and 5 above so that the only issues which had to be considered were whether the keeping of three dogs on the applicants' lot would be excessive and would adversely impact on an adjoining land owner.

5. It will be noted that the issues as reformulated above make no reference to the size of the dogs and the impact is related to a single landowner.  The Shire canvassed all neighbours in proximity to the applicants' lot.  Their written responses, attached to Mr Hunt's statement, reflect that there was only one actual objection to the application.  That objection was from the owners of No 9 Burn Street, Northam, which is a lot adjoining the applicants' property and immediately to the north of it.  The objection is in the name of a Mr MR Andrews and Ms GF Betti ('the objector').  A total of 12 responses were received and all except that from the objector reported no existing problems or complaints with the dogs.  Little turns on the size of the dogs.  It is probable that two of them would be regarded as medium sized and the third, the Rottweiler cross Ridgeback, might be regarded as a large dog.

6. The Shire's evidence discloses the procedure which had been followed in dealing with the application.  The applicants were required to apply for the exemption on a form which was headed 'Application for Planning Approval' and was amended by inserting above that heading 'Dog Application'.  In the accompanying questionnaire completed by the applicants and a letter, details of the dogs and the reason for applying for the exemption are stated.  In essence, a third dog had been acquired, when it was believed that one of the older dogs was terminally ill, to help the applicants' three‑and‑a‑half‑year‑old daughter cope with the anticipated loss of her pet.  Unexpectedly, the older dog survived the illness.

7. The Shire policy manual includes a Multiple Dog Policy.  The Policy commences with a reference to a new local law relating to the keeping of dogs within the Shire ‑ the Shire of Northam Dog Local Law 2008 and an extract is cited:

   3.2(2)The limit on the number of dogs which may be kept on any premises is, for the purposes of s 26(4) of the Act [a reference to the Dog Act 1976 ‑ parenthesis added] ‑

   (a)2 dogs over the age of 3 months and the young of those dogs under that age if the premises are situated within a townsite; or

   (b)2 dogs over the age of 3 months and the young of those dogs under that age if the premises is situated outside a townsite, if the subject property is less than 40 hectares, or 4 dogs over the age of 3 months and the young of those dogs under that age if the premises is situated outside a townsite and is greater than 40 hectares in area.

8. The policy then requires that comments be obtained from adjoining landowners and that Council staff must ascertain if there has been a history of any previous complaints or infringements.

9. A delegated power of approval is granted to the Manager of Planning and Development (the Manager), subject to there having been no adverse comments from adjoining landowners, the application complying in all respects with the policy, there being no previous complaints or infringements against the applicant or the nominated dogs.  If the application involves, relevantly, a lot within a town site or a lot up to 40 hectares in area, the delegation is limited to the approval of three dogs over the age of three months and the young of those dogs under that age.

10. The minutes of the Council meeting held on 18 March 2009 show that the application in question was dealt with at that meeting. The Council papers contain what is taken to be a briefing note prepared by the Council's officers. It sets out details of the dogs, the subject of the application. Reference was made to the Council's Local Law, and in particular to cl 3.2 thereof, which provides that the limitation does not apply to premises which have been granted an exemption under s 26(3) of the Dog Act. The briefing note sets out the policy for dealing with such applications. It states that the application was advertised to adjoining landowners for comment 'and objections have been received (underlining added).  Council is subsequently [sic] required to consider approval as it is outside the scope of the existing delegation for staff'.

11. Under the heading 'Officer's Comment' it is again stated that objections had been received (underlining added).  Reference is made to a Schedule of Submissions attached to the agenda which detail the feedback received, including both the letters of non‑support and support for the application.  It is stated that the Council's Ranger Services had inspected the property and indicated that there is means for effectively confining the dogs on the property.  It is then stated:

    Significant concerns have been expressed through the public consultations regarding issues associated with constantly barking dogs from a [underlining added] landowner in the immediate vicinity of the subject property.

    It is obvious from the submissions received and staff contact with both the applicant and the main objector that significant recent history exists between neighbours.

12. A recommendation was made that Council approve the application subject to various conditions (which are reflected in the order made by the Tribunal).

13. The Schedule of Submissions, as stated, reflects only one objection to the proposal.  The summary of the objector's submission is generally accurate.  However, it is necessary to read the actual submission to fully understand the basis of the objection.  It can be understood from the summary that the general objection relates to the extent to which it is alleged that the dogs bark, which it is stated has resulted in sleep deprivation.  However, the reference to 'Shelter on Burlong Road side not built' has little meaning without reference to the submission itself.  Burlong Road is on the opposite side of the applicants' lot to the side adjoining the objector's lot.

14. The submission reflects that the dogs are kept on a patio on the objector's side of the lot and that barking echoes underneath the roof of the patio.  Reference is made to Mrs Corrigan having said that a shelter would be built on the Burlong Road side but that had not been done.

15. As indicated, the briefing note to Council reflected that staff contact with the applicant and the objector revealed the existence of a 'significant recent history'.

16. Although the references in the briefing note suggested that objections, in the plural, had been received, it is obvious when regard is had to the Schedule of Submission that there was only one objector.

17. It is remarkable that no other adjoining owners reported any problems with the dogs barking.  In those circumstances, the existence of a significant history between the objector and the applicants called for further enquiry in order that the application for exemption could be dealt with properly.

18. Mrs Corrigan gave evidence that she had until recently been friendly with the objector, Ms Betti, and that Ms Betti had apparently taken umbrage by reason of Mrs Corrigan being friendly with other ladies as well, feeling that she was being left out.  Since then, the relationship had deteriorated very markedly.

19. She stated that her dogs barked when people walked past the house at night but that no complaints had been made ‑ except by Ms Betti.  Mrs Corrigan emphasised that the dogs were kept in their own enclosure 'on the other side of the property nowhere near neighbours'.  Photographs of the fenced enclosure were provided and a map reflects that a railway line separates that side of the property from the neighbours.

20. The Shire officers, as reflected in the briefing note, had identified that the dogs could be adequately contained within the property.  It is apparent from the submissions of the objector that the applicants had intended to provide an area for the dogs on the other side of their house, furthest away from the objector's property, and on the Burlong Road side of the applicants' property.  While that had apparently not been done at the time when the objector made a submission, the application to the Tribunal reflects that the applicants were in the process of fencing off an area for the dogs.  By the time of the hearing, that fencing had been completed on the Burlong Road side of the applicants' property.

21. It is conceivable that further investigation would have disclosed that the fencing work was to be undertaken.  But, in any event, the applicants should have been given an opportunity, in the circumstances of this case, to respond to the single objection raised.

Considerations

1. A local government, considering an application for an exemption from a local law limiting the number of dogs which may be kept on a property within its jurisdiction, must deal with the application in a practical way.  It cannot be expected that the local government will carry out a protracted enquiry or hearing in order to determine applications of this nature.  It is appropriate to act on submissions from neighbours, as was done in this matter.  Where there are a number of objectors, and the grounds of objection are consistent and will constitute valid grounds if accepted, and are apparently well‑founded, that should be a sufficient basis upon which the local government might refuse the application. 

2. In the event that an application is made for a review of that decision, this Tribunal should also take a pragmatic view of the nature of the evidence which it is practicable for the local government to put before it.  Even though an applicant appears before the Tribunal and gives evidence denying the factual basis of the grounds supporting the refusal, generally, it is likely that the review would fail, unless some credible explanation is given concerning how a consistent basis for apparently valid objection has been raised by a number of different persons. 

3. Where, however, a large number of neighbours are consulted and all but one have no complaint to make about the behaviour of the dogs in question, it is readily apparent, again generally, that an application for review, in which the applicant gives credible evidence denying the allegations made by the single objector, will have a high likelihood of success.  In such cases, the local government must be conscious of putting a higher standard of evidence before the Tribunal.

4. Similarly, where there is a clear minority of neighbours who say that problems have been experienced, it will be necessary to procure the evidence of at least some of the minority objectors, so that the conflicting versions can be properly tested before the Tribunal.

5. If the local government must put better quality evidence before the Tribunal, in the circumstances given above, then it would obviously be preferable for some further investigation to be carried out before the local government makes its decision on the matter.  In that way, it is possible that an unnecessary review may be avoided.  Importantly, if none of the objectors are prepared to commit to giving evidence to this Tribunal, in the event of an application being made for review, that is a matter which the local government may take into account when considering the application as a whole.

6. In dealing with an application for exemption a local government is under a duty to ensure that granting the application will not cause a nuisance to neighbours, that the dogs can be adequately housed and that they can be contained within the applicant's property. Excessive barking can have a serious impact on the ordinary enjoyment of one's home and no one should have to put up with barking to a degree which constitutes a nuisance. But a discretion to grant an exemption is provided by s 26 of the Dog Act, and that discretion must be properly exercised on the evidence available.

7. In a case in which there is cause for concern about whether the grounds advanced by an objector or objectors might be exaggerated, and objectors will not commit to giving evidence in any review proceedings, it might be considered whether the neighbours may be adequately protected by attaching conditions to the grant of the application.

1. In this case further enquiry should have been made before deciding the matter, unless the Shire officer's recommendations were accepted, including that the conditions, as reflected in the Tribunal's order, be imposed.  Those conditions do provide a degree of protection for the objector.

2. If further investigation had been carried out and if the applicants had been given an opportunity to respond, it probably would have been evident that the applicants intended moving the dogs to the enclosed area away from the objector.  It is also noted that Mrs Corrigan did not deny that there was a discussion with the objector about moving the dogs.  This suggests that the location of the dogs was a genuine basis of concern to the objector.  It also may explain why no other neighbours complained about the dogs barking.  The real concern may have been more related to the location of the dogs because their proximity may have meant that any barking was a source of annoyance.

3. In any event, the concern about location of the dogs has been addressed.  To the extent that the complaint is about excessive barking, based on there being no other person who corroborates that complaint, and Mrs Corrigan's denial that any barking has been excessive, the Tribunal finds that there is no sufficient basis for that complaint.  The Tribunal finds that the keeping of three dogs on the property will not impact on the lifestyle and amenity of the objector.

4. That leaves for determination whether the keeping of three dogs on a residential lot is excessive, and the answer to that issue will therefore determine the primary issue of whether or not the applicants should be permitted to keep three dogs on their property.

5. The Shire's Multiple Dog Policy recognises by the terms of delegation of authority to the Manager, as set out in cl 5.4, that the Manager may grant, without referral to Council, an application for up to three dogs over the age of three months and the young of those dogs under that age to be kept within a town site or a lot up to 40 hectares in area.  The Manager was unable to exercise that delegated authority because an objection had been received.  But as the terms of delegation acknowledge that three dogs can be kept on a town site, and in the absence of any other information being provided to Council or to the Tribunal, there is no basis to conclude that the keeping of three 'large' dogs on a residential block is excessive.  The applicants' lot is in excess of 1 acre, being 4,742 square metres in area.  The lots which adjoin it are generally between 1,000 square metres and 2,200 square metres.  After inspecting the property, the Council's responsible officer recommended approval of the application for exemption.  Mr Hunt was unable to advance any reason why the applicants' property might be considered inadequate for the keeping of three dogs.  The Tribunal accordingly finds that the keeping of three dogs on the applicants' Lot, being a residential lot within a town site, is not excessive.

6. It follows that the application for review should be upheld, subject to appropriate conditions.

7. The Shire officer's recommendation to Council was that seven conditions be attached to the approval.  These conditions reflect the conditions of approval contained within the Shire's Multiple Dog Policy.  The Tribunal considers the conditions are reasonable and should be imposed.  In particular, condition 7, as set out in the Tribunal's order above, will enable the Council to revoke the approval for the keeping of the third dog in the event that any barking dog complaint is received and is proven to be justified.

8. For the above reasons, the Tribunal made the order which it did at the conclusion of the hearing on 16 June 2009 as set out above.

I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR C RAYMOND, SENIOR MEMBER