DE LA HAYE and TOWN OF KWINANA

[2012] WASAT 134

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: DOG ACT 1976 (WA)

CITATION:   DE LA HAYE and TOWN OF KWINANA [2012] WASAT 134

MEMBER:   MS C WALLACE (MEMBER)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   29 JUNE 2012

FILE NO/S:   CC 703 of 2012

BETWEEN:   SUSANNE DE LA HAYE

Applicant

AND

TOWN OF KWINANA
Respondent

Catchwords:

Review of decision by local authority - Dog Act 1976 (WA) - Town of Kwinana policy to allow exemption to keep more than two dogs - Exercise of discretion

Legislation:

Dog Act 1976 (WA), s 26, s 26(3)
State Administrative Tribunal Act 2004 (WA), s 29(3), s 29(3)(c)
Town of Kwinana Dog Laws 2010, by­law 3.2(2)

Result:

Application for review of decision of Town of Kwinana is successful and decision to refuse an application for exemption to keep more than two dogs is set aside and decision of Tribunal is substituted in its place

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

Respondent:     Mr C Wells (Acting as Agent)

Solicitors:

Applicant:     N/A

Respondent:     Town of Kwinana

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

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. Ms De La Haye applied to the Town of Kwinana pursuant to s 26(3) of the Dog Act 1976 (WA) for an exemption from the provisions of by­law 3.2(2) of the Town of Kwinana Dog Laws 2010, so as to lawfully keep a third dog at her property situate at 14 Ridley Way, West Medina.  That application was refused following an ordinary meeting of the Council of the Town of Kwinana on 11 April 2012.  Ms De La Haye was informed of the decision by letter dated 13 April 2012.  Within the 28 day period permitted, Ms De La Haye, as an aggrieved person, made application to the Tribunal on 10 May 2012 for a review of the Town of Kwinana's decision and sought orders, in effect, to set aside the Town of Kwinana's decision and to substitute, therefore, a decision exempting Ms De La Haye from the limitation of keeping only two dogs at her property as provided for by by­law 3.2(2) of the Town of Kwinana Dog Laws 2010, so as to lawfully to keep a third dog at her property.

2. The Tribunal received additional information from the Town of Kwinana following the commencement of the Ms De La Haye's application in the Tribunal, which information was broadly in support of Ms De La Haye's application.  On the merits, the Tribunal set aside the Town of Kwinana's decision made 11 April 2012 and substituted its decision to grant Ms De La Haye an exemption from the provisions of by­law 3.2(2) of the Town of Kwinana Dog Laws 2010, so as to permit her to lawfully keep three dogs on her property.

The facts

1. The facts of this matter are not in dispute.

2. Ms De La Haye (applicant) is the owner of three small dogs:

   a)Rachael, Papillion, seven years old, registered until 31 October 2013;

   b)Peggy, Papillion, three years old, registered until 31 October 2013; and

   c)Jack, Maltese, seven years old, registered until 31 October 2013.

3. The circumstances surrounding the applicant's acquisition of Peggy and Rachael are not known and are not relevant.  The applicant acquired Jack from an elderly lady whom was unable or unwilling to care for Jack.  The applicant knew the elderly lady by reason of the fact that she was a neighbour of the applicant when she resided at a different location to her current home situate at 14 Ridley Way, West Medina.  The applicant paid for Jack's veterinary treatment and cared for Jack while she resided in this other location.  At the time, when the applicant moved to her current residence at 14 Ridley Way, West Medina, she then had three dogs for which she cared.

4. The applicant's property at 14 Ridley Way, West Medina, comprises an area of 728.43 square metres.  The respondent admits, by letter dated 30 May 2012, that the rangers employed by the respondent have investigated the applicant's circumstances and are of the view that, in summary:

   a)All three dogs are well cared for.

   b)The applicant's property comprises sufficient area and space for their exercise and well­being.

   c)The fencing on the applicant's property is suitable and sufficient to contain the dogs.

   d)The dogs are sufficiently well exercised by the applicant.

   e)An initial objection had been raised by a resident in the 'immediate vicinity' on the basis of the overall welfare of the animals, which objection had been investigated by the respondent and found to be without foundation.

   f)There have been no instances of complaints concerning barking or other instances of nuisance, and the property where the dogs are situated is free of excessive faeces.

   g)The respondent's ranger, Mr Wells, is of the view that the dogs are not only well cared for but are 'loved dearly' by the applicant.

Legislative scheme and policy

1. Section 26 of the Dog Act 1976 (WA) (Dog Act) provides:

   (1)The provisions of this Part shall not operate to prevent the keeping on any premises of 2 dogs over the age of 3 months and the young of those dogs under that age.

   (2)Subject to subsection (1), a local government, pursuant to local laws, may limit the number of dogs over the age of 3 months, or the number of such dogs of any specified breed or kind, that may be kept on any premises situate in a specified area to which those local laws apply unless those premises are licensed as an approved kennel establishment or are exempt.

   (3)Where by a local law under this Act a local government has placed a limit on the keeping of dogs in any specified area but the local government is satisfied in relation to any particular premises that the provisions of this Act relating to approved kennel establishments need not be applied in the circumstances, the local government may grant an exemption in respect of those premises but any such exemption -

   (a)may be made subject to conditions, including a condition that it applies only to the dogs specified therein;

   (b)shall not operate to authorise the keeping of more than 6 dogs on those premises; and

   (c)may be revoked or varied at any time.

   (4)Subject to the provisions of subsection (3), a person who keeps on any premises, not being premises licensed as an approved kennel establishment, dogs over the age of 3 months in numbers exceeding any limit imposed in relation to those dogs by a local law made under subsection (2) commits an offence.

   Penalty: $1 000 and a daily penalty of $100.

   (5)Any person who is aggrieved -

   (a)by the conditions imposed in relation to any exemption from the provisions of a local law placing a limitation on the number of dogs that may be kept on any premises; or

   (b)by the refusal of a local government to grant such an exemption, or by the revocation of an exemption,

   may apply to the State Administrative Tribunal for a review of the decision.

   (6)An application under subsection (5) cannot be made later than the expiry of a period of 28 days after the day on which a notice of the decision is served on the person affected by that decision.

2. By­law 3.2(2) of the Town of Kwinana Dog Laws 2010 provides, relevantly:

   The limit on the number of dogs which may be kept on any premises is, for the purpose of section 26(4) of the Act[,] 2 dogs over the age of 3 months and the young of those dogs under that age.

3. The Town of Kwinana Dog Laws 2010 does not specify the factors that may be relevant in determining whether the respondent shall grant an exemption pursuant to s 26(3) of the Dog Act. Instead, the respondent has formulated a policy when considering an application for an exemption pursuant to s 26(3) of the Dog Act. Whilst a policy does not have the effect of replacing or limiting the discretion conferred by the Dog Act upon the respondent, the Tribunal will, generally, apply that policy, unless there are 'cogent' reasons for departing from the same (Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

4. The respondent's policy, relevantly, provides that:

   1)Without specific permission from the respondent, no more than two dogs may be kept on any property within the Town of Kwinana.

   2)For those residents in the respondent's jurisdiction who wish to keep three dogs or more on any property, they must seek the respondent's permission.

   3)The lot size where the dogs reside should be 750 square metres or greater, although the respondent specifically reserves the right to determine, in any particular case, that a larger/smaller area may be approved/required depending on size/breed/age of dogs and the topography of the property.

5. The applicant's property is 728.43 square metres.

Consideration

1. In this matter, the Tribunal considers that all of the policy criteria have been met, save for the lot size of the applicant's property.  In this case, the applicant's property falls short of the 750 square metre lot size referred to in the policy by less than 22 square metres.  On the basis of the information provided by the respondent, that:

   1)the dogs are well cared for and 'loved dearly' by the applicant;

   2)the applicant's property is free of excessive faeces;

   3)the applicant's property is suitably and sufficiently fenced to contain all three dogs;

   4)the original objection is without merit;

   5)the respondent has not received any new complaints or objections based upon the dogs' behaviour;

   6)the applicant's evidence that she regularly exercises the dogs, has a great affection for all three dogs and attends to their welfare and that they are largely indoor dogs; and

   7)the applicant's property, although less than 750 square metres, has sufficient space to allow for all three small dogs to take sufficient exercise and is suitable for their wellbeing,

   the Tribunal concludes that the correct and preferred decision is that the applicant should be granted an exemption from the provisions of by­law 3.2(2) of the Town of Kwinana Dog Laws 2010, so that she is permitted to lawfully keep a third dog at her property.

Conclusion

1. For the reasons referred to above, the Tribunal considers that the decision made by the respondent should be set aside and in substitution thereof, the decision be made to grant the applicant an exemption from the provision of by­law 3.2(2) of the Town of Kwinana Dog Laws 2010, so that she may lawfully keep three dogs:

   (a)Rachael;

   (b)Peggy; and

   (c)Jack;

   on her property situate at 14 Ridley Way, West Medina.

Order

1. The Tribunal makes the following orders:

   1.Pursuant to s 29(3)(c) of the State Administrative Tribunal Act 2004 (WA), the respondent's decision made on 11 April 2012 to refuse the applicant's application, made pursuant to s 26(3) of the Dog Act 1976 (WA) for an exemption from the provisions of by­law 3.2(2) of the Town of Kwinana Dog Laws 2010, so as to lawfully keep her three dogs:

   (a)Rachael;

   (b)Peggy; and

   (c)Jack

   on her property situate at 14 Ridley Way, West Medina, is set aside.

   2.Pursuant to s 26(3) of the Dog Act 1976 (WA) and s 29(3) of the State Administrative Tribunal Act 2004 (WA), the applicant is granted an exemption from the provisions of by­law 3.2(2) of the Town of Kwinana Dog Laws 2010, so as to lawfully keep her three dogs:

   (a)Rachael;

   (b)Peggy; and

   (c)Jack

   on her property situate at 14 Ridley Way, West Medina.

I certify that this and the preceding [14] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS C WALLACE, MEMBER