DUESCHEN and CITY OF STIRLING - [2010] WASAT 64

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: HEALTH ACT 1911 (WA)

CITATION: DUESCHEN and CITY OF STIRLING [2010] WASAT 64

MEMBER: MR M SPILLANE (MEMBER)
MS R MOORE (SENIOR SESSIONAL MEMBER)

HEARD: 4, 24 AND 31 AUGUST 2009, SUBMISSIONS OF 21 SEPTEMBER 2009, DECISION RESERVED 7 DECEMBER 2009

DELIVERED : 30 APRIL 2010

FILE NO/S: CC 677 of 2009

BETWEEN: TATYANA DUESCHEN
URSULA DUESCHEN
Applicants
AND
CITY OF STIRLING
Respondent

Catchwords:

Notice Requisition to abate nuisance Section 184 of the Health Act 1911 (WA) Rat harbourage Keeping of animals Attracting wild birds

Legislation:

Health Act 1911 (WA), s 36, s 182, s 1822), s 182(4), s 182(8), s 184
State Administrative Tribunal Act 2004 (WA), s 17, s 27(2), s 29, s 29(1), s 29(3), s 39
Wildlife Conservation Act 1950 (WA)

Result:

Application allowed in part
Notices varied and affirmed

Category: B

Representation:

Counsel:

Applicants: Self-represented
Respondent: Mr D Nadebaum

Solicitors:

Applicants: Self-represented
Respondent: McLeods

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

Dueschen and City of Stirling [2008] WASAT 181
Fremanis Investments Pty Ltd v City of Perth [1978] WAR 33; 43 LGRA 1
Porter v Cook [1971] NSWLR 1

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The City of Stirling issued two notices dated 24 April 2009 under the provisions of the Health Act 1911 (WA) to Mrs Ursula Dueschen as owner of No 143 Sixth Avenue, Inglewood and Ms Tatyana Dueschen as an occupier.
The notices declared that a nuisance existed at the premises and that the applicants were to abate the nuisance in the manner specified.
The Dueschens sought a review of the notices on the basis that they did not believe a nuisance existed, that they were being discriminated against and that the neighbours and the City of Stirling were unreasonable in their complaints.
At the hearing, an environmental health officer and a number of neighbourhood witnesses gave evidence on behalf of the City of Stirling. Ms Tatyana Dueschen gave evidence on her own behalf and crossexamined the City of Stirling's witnesses. A site inspection also took place.
Having considered the evidence presented to it, the Tribunal found that a nuisance did exist, affirmed the notices and varied the abatement that needed to take place.

Background

The application concerns the review of a decision by the City of Stirling (City) to issue two requisitions/notices (notices) under s 184 of the Health Act 1911 (WA) (Health Act). Both notices were issued on 24 April 2009.
The notices were in identical form, with one being addressed to Ms Tatyana Dueschen as occupier of No 143 Sixth Avenue, Inglewood (premises) and the other being addressed to Mrs Ursula Dueschen as owner of the premises.
There is currently no house or buildings on the premises.
The house that previously occupied the premises was the subject of a take down notice in 2008, which notice was affirmed by a decision of this Tribunal on 20 August 2008: see Dueschen and City of Stirling [2008] WASAT 181. However, prior to that notice being acted upon, the dwelling was destroyed by fire and later removed.
It was confirmed by Ms Tatyana Dueschen at the hearing of this matter that her mother and herself were residing at the premises in tenttype accommodation. This was also observed to be the position by the Tribunal at the site inspection on 24 August 2009. Ms Tatyana Dueschen and her mother, Mrs Ursula Dueschen, are therefore living at the 'premises' for the purposes of the Health Act, which are defined as 'includes messuages, buildings, lands and hereditaments;'.
According to the evidence before the Tribunal, the Certificate of Title shows the property is owned by Mrs Ursula Dueschen and Mr Konstantin Dueschen as joint tenants. Mr Dueschen died in December 1979 and the Certificate of Title has not been amended.
Mrs Ursula Dueschen did not make any appearance at the Tribunal, nor did she participate in the site inspection that took place on 24 August 2009. Ms Tatyana Dueschen participated in the proceedings throughout on behalf of both herself and her mother, and the Tribunal accepted Ms Tatyana Dueschen as doing so pursuant to s 39 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
All references in these reasons to Ms Dueschen refer to Ms Tatyana Dueschen unless otherwise stated. References to 'the Dueschens' or 'the applicants' refer to Mrs Ursula Dueschen and Ms Tatyana Dueschen jointly.
The application bringing the matter before the Tribunal was lodged on 14 May 2009, with the first directions hearing taking place on 21 May 2009, at which time the notices were stayed until the hearing of the substantive application.
Various orders were also made in respect of the filing of documents, and the matter was listed for a final hearing to commence at 10 am on 4 August 2009 for a duration of two days.
In the timetable for the production of submissions and evidence, extended time was given to the applicants on the basis that they were selfrepresented.
17 July 2009 was a milestone by which the applicants had to file their written statements of evidence and any submissions. Nothing was received by that date, although the respondent had complied with its milestone to file documents by 19 June 2009.
A site inspection was listed for 2 pm on 3 August 2009, the day before the first day of hearing. Early on the morning of 3 August 2009, a telephone call was received by the Tribunal from Ms Dueschen referring to a facsimile which she had sent late the previous afternoon requesting an adjournment.
Following consideration of the application, the site inspection on 3 August 2009 was adjourned to a later date, but the hearing of 4 August 2009 was ordered to proceed, and when it did, there was no appearance by the applicants.
As the respondent was present with all of its neighbourhood witnesses, the Tribunal decided that the best way to proceed was to allow the respondent to present its case and all of its evidence, following which the matter would be adjourned to a later date.
Prior to that adjourned date, the applicants would be supplied with a full copy of the transcript of the hearing of 4 August 2009, keeping in mind that they had already been furnished with all of the written statements of the respondent's witnesses.
If the applicants wished to crossexamine any of the respondent's witnesses, they could nominate, prior to the adjourned date for the final hearing, those witnesses they wished to be recalled. The site inspection was also relisted, and the following orders were made following the part hearing on 4 August 2009:
1)The partheard hearing is adjourned to directions at 12 noon on 24 August 2009.
2)The site inspection will be held at 3 pm on 24 August 2009.
3)The matter is listed to complete the hearing at 12 noon on 31 August 2009.
The reason the matter was listed for 12 noon on each day was for the benefit of Ms Dueschen who had informed the Tribunal that she was not in a position to attend any hearing prior to that time.
The matter then proceeded pursuant to those orders, with a site inspection taking place at 3 pm on 24 August 2009 and the partheard hearing completed on 31 August 2009.
At the reconvened hearing on 31 August 2009, all of the witnesses who had given evidence for the respondent on 4 August 2009 were again in attendance and available for crossexamination. Ms Dueschen confirmed that she had received a copy of the transcript from the hearing of 4 August 2009, and, by letter dated 27 August 2009, had requested that four of the respondent's witnesses be recalled for crossexamination.

Notices

The notice the subject of the application for review was issued pursuant to s 184 of the Health Act.
Without setting out the entire notice, the tenor and effect can be understood by the following paragraphs.
Having identified the applicant, the notice, stated:
…
HEREBY GIVES YOU NOTICE that it has received a report from an Environmental Health Officer that a nuisance exists on the said premises by reasons of the matters specified in the [F]irst Schedule hereto.
NOW TAKE NOTICE that you are required within 7 days of the service of this Notice upon you to abate the nuisance in the manner specified in the Second Schedule hereto.
The First Schedule stated:
The premises are situated in a residential area with no buildings on the land. Areas of the premises are covered in vegetation which provides harbourage for rats. Rats are present on the premises and are spreading onto adjoining properties in the locality.
Bird and animal food and water is being placed around the premises resulting in large numbers of birds being attracted to the premises to feed and drink. The birds['] presence creates a nuisance in the locality by reason of:
•The accumulation of food products in the yard of the premises.
•An increase in rodent activity in the locality.
•Bird faeces and feathers accumulating on the premises, on the footpath and the road outside the premises.
•Offensive odours in the locality of the premises.
Vegetation on the property is providing perching space and harbourage for birds.
Numerous cats are being kept at and attracted to the property and are roaming on to other properties in the locality. Food and water for the cats is being placed around the premises. Vegetation on the property is providing harbourage for the cats. The cats are creating a nuisance by reason of:
•Creating noise in the locality.
•Creating offensive odours in the locality of the premises.
•Depositing faeces and urine on premises in the locality.
The Second Schedule stated:
All vegetation is to be removed from the premises.
The placement of animal and bird food and water around the yard of the premises is to cease.
All cats are to be removed from the premises.

Health Act

Section 184 of the Health Act under which both notices were issued states:
Subject to the last aforesaid, any nuisance may be dealt with in manner following, that is to say:
(1)On the report of any environmental health officer or other person that a nuisance exists on any premises, the local government may, and, if the Executive Director, Public Health so requires, shall, by requisition to the owner and occupier of the premises, require them to abate the nuisance in the manner and within the time specified in the requisition.
(2)The owner and occupier are hereby jointly and severally empowered and required to comply with the requisition, and do whatever is necessary in order to effectually abate the nuisance.
…
Section 182 of the Health Act under the heading 'Definition of nuisances' states:
A nuisance shall be deemed to be created in any of the following cases
…
(2)where any animal is so kept as to be a nuisance or injurious or dangerous to health; or
…
(4)where any house or premises are in such a state as to be a nuisance or injurious or dangerous to health; or
…
(8)where any house or premises are in such a state as to harbour rats; or
…
and any such nuisance may be abated and dealt with under any of the provisions of this Act applicable for the purpose;
…

Respondent's evidence

Mr David Schwenke, an Environmental Health Officer at the City, gave evidence in the proceedings and confirmed that he was familiar with the premises and had inspected them on a number of occasions.
Mr Schwenke outlined the history of the property and, in dealing with the history following the demolition of the applicant's house, stated:
When the dwelling was demolished[,] the Dueschens initially lived elsewhere but then returned to the property where they now reside in a tent.
…
Inspections of the property following demolition of the dwelling and the return of the Dueschens to live at the property revealed that although the number of cats at the property was less than prior to demolition of the dwelling when more than forty cats were at the property[,] nevertheless there were numerous cats on the property. The Dueschens were setting out food and water for those cats. It was difficult to ascertain how many cats were on the property as most of the cats remained in the dense vegetation at the rear of the property and only occasionally ventured onto the sandy area at the front of the property. Further, the cats would not necessarily stay on the property but roamed throughout the locality. Accordingly, at any one time[,] all cats kept at the property would not be on the property.
During those inspections it was evident that the Dueschens were also putting out food and water for birds attracted to the property. This created a nuisance in the area[,] particularly by reason of the larger birds such as ibis, crows and magpies which were attracted to the property.
Food being set out included grain, bread, meat and mince. Containers of water were also set out all around the property.
The property was also providing ideal harbourage for rodents. In that regard[,] complaints over the years had indicated [that] rats were present on the property and the abundance of food left out for cats and birds as well as adequate water and excellent harbourage in the dense vegetation at the rear of the property meant that rat infestation was present.
Public health issues evident from those inspections were in relation to cats defecating and urinating on properties in the area as well as on the Dueschen property, bird droppings and feathers accumulating on properties in the area as well as on the Dueschen property and rats present on and attracted to the Dueschen property spreading on to surrounding properties. That situation not only created a nuisance to residents in the area but also a substantial health risk.
The City also called four neighbourhood witnesses who furnished written statements and gave oral evidence and were also cross-examined. They were:
•Mr Frank Vertannes of Unit 1, No 142 Sixth Avenue, Inglewood, who confirmed he had lived at that property for 14 years and was very familiar with No 143 Sixth Avenue, Inglewood, which was directly across the road from him.
•Ms Lauren Grayson of No 145 Sixth Avenue, Inglewood, who lived alongside the Dueschen premises, with the two properties sharing a common boundary.
•Mr Mark Mackin of No 140 Sixth Avenue, Inglewood, who has lived there for approximately 15 years and is located directly across the road from No 143.
•Mr Paul Stevens of No 145A Sixth Avenue, Inglewood has lived there for approximately nine years and is located alongside the Dueschen premises, with the two properties sharing a common boundary.
All of the evidence from the neighbourhood witnesses was consistent. They confirmed that the applicant lives with her mother on the premises in a type of tent or humpy, and the issues which continually created a nuisance for them were:
1)The number of cats at the property, with Ms Grayson stating:
I would estimate there are at least 20 cats on the property and that number may be up to 30 35. I have counted up to 18 cats on the front of the property at any time. I have also seen kittens on the property indicating cat breeding is taking place. There appears to be a new batch of kittens every month or so.
The complaints in respect of the cats related to noise from cat fights, odour problems from cat urine and faeces, and the cats regularly straying onto other properties.
2)In respect of birds at the property, again, all of the complaints were similar, with Ms Grayson describing it in the following terms:
The problems with birds at the Dueschen property arise in view of the number of birds attracted to the property. In that regard the Dueschens put out food for the birds on a daily basis.
Food such as mince, bread, seed, chicken pellets and meat are placed around the property and on fencing which borders the property.
Large birds such as ibis, crows and magpies are therefore attracted to the property[;] however[,] smaller birds such as doves are also attracted to the property in numbers.
The larger birds create a greater nuisance than the smaller ones.
They roost in the vegetation on the Dueschen property but also on roofs of adjoining houses.
The roof of our property is often covered in bird droppings. Bird droppings also create a problem by reason of soiling of washing left out to dry and general soiling of the footpaths and roads around the locality as well as the yards and roofs of houses in the locality.
We also have a problem with numerous bird feathers which drift onto our property and with dust disturbed by the Dueschens raking up the area at the front of the property where birds are fed.
Water bowls and food trays for the birds are placed out all over the front of the Deutschen property. The worst time of day for birds is around 5.00pm or in the early morning when 50 or 60 ibis are attracted to the Dueschen property. They cover virtually all of the block. If startled[,] they fly onto adjoining roofs. Some of the ibis are there all day[;] however[,] the numbers increase around feeding time. Ibis also tend to sit on boundary fences of our property.
The fact that crows and magpies are also attracted to the property and roost in the vegetation of the property leads to noise nuisance occurring in the locality as well as the fouling of properties by those birds['] droppings.
Neighbours complained that food scraps regularly drop on their properties from birds picking them up in the Dueschen property and then flying over their property. Large birds perching on TV aerials and washing lines was also an issue.
3)In respect of rats, all of the neighbours complained of seeing rats running along the boundary fence between the properties and that rats come on to the various neighbouring properties from the Dueschen property. The neighbours believed that the problem arose by reason of the Dueschens feeding animals and the birds, together with the harbourage for rats afforded by the dense vegetation at the rear of the Dueschen property.
4)The neighbours also complained of what some described as a farmyard smell and, depending on which way the wind is blowing, having to shut the doors and windows to try and keep the smell out. Most neighbours believed the smell was due to urine and faeces of the various animals.
Mr Schwenke confirmed that, in view of the problems encountered, the City resolved to serve the notice pursuant to the nuisance provisions of the Health Act requiring any nuisances arising at the property to be abated.

Applicant's evidence

Ms Tatanya Dueschen attended the site inspection on 24 August 2009 and the final hearing on 31 August 2009.
Ms Dueschen crossexamined Ms Grayson, Mr Vertannes, Mr Mackin, Mr Stevens and Mr Schwenke.
Ms Dueschen also gave oral evidence and was crossexamined by Mr Nadebaum on behalf of the respondent.
Ms Dueschen made it clear that she believed that Council was discriminating against her and her mother, and had, as she put it, a 'very oneeyed view'. She confirmed that she has always fed animals and birds.
As to the number of cats, when asked by the Tribunal 'Do you believe that the number of cats you have are in any way shape or form, at any time, a nuisance to any of your neighbours?' Ms Dueschen stated:
I think not.
She also stated:
… the only thing I'm not happy about is because I have no restraint I would prefer the cats to be absolutely in all of the time in an enclosure.
In respect of the birds, Ms Dueschen stated:
Well, the birds are admittedly when we first had the roof, they didn't go to anybody else's rooves, they were on the powerlines and what have you, but again council has said that if I put food out they wouldn't come. Now, I'll tell you the situation with the ibises: up until five years ago there wasn't a single solitary ibis at our property. There was no need, because they were acquiring their food in the usual places.
You see, they take swampy areas and they're sort of omnivorous and they found, usually, sufficient food. We didn't get any birds from Herdsman Lake or some of those other places, but unfortunately in the last eight years[,] there has been intensive development in the areas that formerly was known as swampland and they not only lost their trees, but they also lost their swamps. Now this is all now units. Now the birds had to go somewhere and it just happens to be I'm one of those people that birds seem to go to.
Now, it wasn't the food that actually attracted them, they were looking for shelter temporarily, and for water. …
… So I repeat, before the swamps were taken away, and their food source, I didn't have ibis, but of course they haven't got any now and I had an extra large amount although they weren't quite as much as my neighbours have indicated. …
…They're more or less consistent. They don't roost at night well, they do go rather late, but they don't roost in our trees because we've got the wrong sort of trees for them.

In respect of the issue of rats, counsel for the respondent put to Ms Dueschen that in her oral evidence she had confirmed that she could hear rats when she was in her tent at night.
Ms Dueschen stated in reply:
I don't accept they're coming from my property, but they're coming along the fence yes, but not from our trees, …
Ms Dueschen maintained that there were no rats at the front of the property where there was a clear area, and that the water bowls were not an attraction for rats. In reply to a question from counsel for the respondent, she stated:
So as for the water bowls, particularly the way rats eat, they prefer grains and cereals, and they won't say no to a bit of mince, though I've yet to notice anyone go out front to eat it, because they just will not go out there. The water bowls are not an attraction for the rats. They don't really need that. There are far more easier accesses. Rats by nature are very recetitive [sic], very quiet, shy and they like to scurry in corners. They've got to have something where they can hide in.
She explained that there were rats in all builtup neighbourhoods and that it could not be proved that they were coming from her property.
It is clear from Ms Dueschen's evidence throughout the hearing that she refuses to accept any of the issues raised were a nuisance to her neighbours.
When asked 'On what basis do you say that this notice should be set aside?' Ms Dueschen stated:
Because it's discriminatory because there are other people that feed birds.
Later, in respect of the same matter, she stated:
Because they haven't apart from the fact that the neighbours have said that we are a nuisance, and I think that's a personal issue with the neighbours apart from aside that they obviously don't like birds and most of them have got rid of what trees they have ---

Vegetation

Towards the end of the hearing, one of the issues raised was the wording of the Second Schedule, in particular the sentence which dealt with vegetation, which states:
All vegetation is to be removed from the premises.
The Tribunal enquired whether that meant that the premises were to be effectively turned into a sand pad. Through questioning, it became evident that what the City was concerned about was the dense groundcover and understorey which, in its opinion, was a harbourage for rats.
As the hearing before the Tribunal was a hearing de novo, the respondent agreed to file and serve further submissions in respect of the vegetation and what they saw in particular as being necessary to have removed.
As a result, the following orders were made:
1.The hearing of the matter is adjourned to allow the respondent to file and serve submissions in respect of the vegetation on site on or before 11 September 2009.
2.Following receipt of the respondent's submissions, the applicant may file submissions in reply on or before 25 September 2009.
3.Following receipt of those submissions, the Tribunal's decision in the matter will be reserved.
By midNovember 2009, although the respondent had filed and served submissions in respect of the vegetation, no submission in reply had been received from the applicant. In order to give the applicant every opportunity to reply, the following orders were made on 19 November 2009:
1.The respondent filed and served submissions in respect of the vegetation on site on 21 September 2009. No submission has been received in reply from the applicant.
2.The applicant has until close of business on 4 December 2009 to file and serve any submissions in reply.
3.The decision in the matter will be reserved as and from 7 December 2009.
No submissions in reply were received from the applicant and the decision was reserved on 7 December 2009 as per the order of 19 November 2009.
The submissions in respect of vegetation that were received from the respondent were prepared and signed by Mr Schwenke who had given evidence at the hearing and also by Mr Craig Dukas, the respondent's coordinator of environmental health. The report stated as follows:
RE DUESCHEN'S HN 143 SIXTH AVENUE INGLEWOOD ENVIRONMENTAL HEALTH OFFICER REPORT RAT HARBOURAGE / VEGETATION REMOVAL:
An inspection was conducted by City officers David Schwenke, Greg Ducas (Environmental Health Officers) and Graham Harris (Horticulturalist) on 3 September 2009 at the subject property. After the inspection a determination was made about the vegetation that is contributing to rat harbourage on the property as follows:
1.All the shrubs noted on the property were overgrown with dense foliage and should be removed.
2.The roses also noted on the property were overgrown with dense foliage and should be removed.
3.A number of trees on the property have downward hanging branches and may provide access to denser foliage higher within the trees. It is therefore recommended that the limbs of trees located 2.75 meters [sic] from the ground be removed.
4.The peppermint tree noted as 9 on the enclosed diagram and shown as enclosed photograph page number 5 (background) is covered in dense shrub and creeper foliage. The tree is virtually devoid of any of its own leaf and is in the opinion of Mr Harris in a poor condition. A number of the tree limbs overhang a neighbouring property. It is recommended that this tree be entirely removed for safety and rat harbourage reasons.
Also enclosed for the Tribunal[']s consideration are:
•A table naming and describing the vegetation[']s condition (enclosure 1)[.]
•Associated photographs of the vegetation numbered to correspond with the table (enclosure 2).
•A site map corresponding with the table showing the location of major pieces of vegetation (enclosure 3)[.]
It is the opinion of the above[]mentioned Environmental Health Officers that the action suggested will significantly reduce rat harbourage on the subject property.

Consideration

In an application for review before the Tribunal in circumstances such as the present, the Tribunal, in exercising its review jurisdiction, deals with the matter pursuant to s 17 and s 29 of the SAT Act and s 36 of the Health Act, and the Tribunal has, as per s 29(1) of the SAT Act, the same jurisdiction, functions and discretions as those of the City as the original decisionmaker.
The Tribunal may also take into account any additional and new information which was not at the disposal of the City at the time the decision was made, and the purpose of the review is to produce the correct and preferable decision at the time of the decision upon review.
The Health Act is important legislation which authorises State Health Officers and Local Government to discharge various powers and functions for the protection of public health and, as outlined earlier, s 182 of the Health Act defines where nuisances are deemed to be created.

Rat harbourage

In dealing first with the issue of rat harbourage, s 182(8) of the Health Act states:
A nuisance shall be deemed to be created …
…
(8)where any house or premises are in such a state as to harbour rats; …
The Macquarie Dictionary (4th ed) defines 'harbour' as ' … 2. any place of shelter or refuge. … 3. to conceal; give a place to hide;'.
The definition of 'premises' under the Health Act set out earlier includes 'lands', and clearly applies to No 143 Sixth Avenue, Inglewood.
The issue of how rats could survive on premises where there was also a significant number of cats was raised, and Ms Dueschen confirmed that, over time, cats had killed a significant number of rats; however, she did not believe there were rats on her property but, rather, on other neighbouring properties.
Mr Mackin, one of the neighbourhood witnesses, was of the opinion that the cats were well fed and therefore left the rats alone.
The evidence of the neighbours and the environmental health officer for the City was clear as to the presence of rats, with even the applicant accepting their presence in the area and their appearance, at the very least, along the boundary fences.
There is no doubt, therefore, that there are rats in the area and, as Ms Dueschen stated:
Rats by nature are very recetitive [sic], very quiet, shy and they like to scurry in corners. They've got to have something where they can hide in.
From the evidence before it, the Tribunal is satisfied that the applicant's premises offer such hiding places, and finds that the premises are clearly in such a state as to harbour rats and are therefore a nuisance pursuant to s 182 of the Health Act.
In such circumstances, it is only reasonable, and certainly necessary for the purposes of the Health Act, that the harbourage that exists be abated to ensure the premises are not in such a state.

Cats

Section 182(2) of the Health Act deems a nuisance to be created:
where any animal is so kept as to be a nuisance or injurious or dangerous to health …
In respect of the cats, the Tribunal is satisfied that there are a significant number of cats on the premises and, although no specific numbers could be identified, it is clearly significantly more than the number normally allowed under the City bylaws.
The City local law titled Keeping and Control of Cats Local Law 1999 (local law) requires a permit for keeping cats on premises within the City.
Clause 3.2(1) of that local law states:
A person shall not (a) unless subclause (2) or (3) applies, keep three or more cats on any premises;
The objects of the local law are stated to be:
a)control the number of cats kept on premises; and
b)protect native fauna.
Therefore, apart from the nuisance provisions of the Health Act, the applicant, or for that matter, any other resident of the City, is not entitled to keep any more than two cats on any premises at any one time, unless they come within the exceptions to the by-laws or have the City's approval. Counsel for the respondent argued that, in the present case, the applicant was not allowed to keep any cats.
As to whether the cats are 'kept' for the purposes of s 182(2) of the Health Act, there is no definition of 'keep' in the Act. However, 'keep' is defined in The Shorter English Dictionary as to 'take care of, look after tend, have charge of (a thing person or animal)' and although Ms Dueschen did not confirm the number of cats in her care, she clearly accepted she had cats and stated:
… the only thing I'm not happy about is because I have no restraint I would prefer the cats to be absolutely in all of the time in an enclosure.
In Porter v Cook [1971] NSWLR 1 (Porter), Asprey J (with whom Manning J and Moffitt J agreed), when dealing with the issue of where a dog was 'ordinarily kept', held:
The words 'kept' or 'keep' can bear a very wide variety of meanings according to the subject matter of that which is alleged to be kept. When used in the context of a person ordinarily keeping a dog on any land or premises, and in relation to the occupier of that land or those premises who is entitled to occupy that land … I think that the phrase 'ordinarily kept' can indicate the meaning of the act of so treating the dog with some degree of continuity that the animal becomes attached to that land or those premises for the time being.
…
The action of providing food for the dog from time to time is a positive act in relation to the meaning to be ascribed to the word 'kept', because I am of opinion that the act of feeding a dog is a method, and a very important method, of exercising some measure of control over the dog and of attaching it to the land or premises. But the negative acts of refraining from hunting the dog away from the land itself or excluding it from the interior of the house on the land are also important on the question of whether the dog is 'kept' in the connotation of that word …
And later:
It seems to me that providing food for the dog, whether it be scraps from the table or otherwise, is a positive act of attaching the dog to the premises. There is no evidence at all that the dog was driven or hunted away or even encouraged by any means at all to keep away from the land; …
On the evidence before it in the present case, particularly the evidence of the neighbours, the Tribunal is satisfied that there are a significant number of cats on the premises and that those cats are so kept as to be a nuisance to the neighbours and the neighbourhood, for reasons of noise, stench and straying on other properties and measures to abate that nuisance are necessary.

Birds

The issue of the birds is a little more complicated, in that they are not domesticated animals. In relation to whether a wild animal can be 'kept' in the sense of s 182(2) of the Health Act, it is noted that there is a definition of 'keep' in the Wildlife Conservation Act 1950 (WA), which states:
'Keep' means to have in possession or control in any place whatsoever even though another person may have the actual possession or custody of the animal in question;
As per the findings in Porter outlined above, it could be argued that the birds attracted to the property by the applicant are, for the purposes of the Health Act, 'kept' on the premises.
However, it is not necessary to make that finding in the present case, as the Tribunal is satisfied, and finds as a fact, that, by attracting such a large number of wild birds to the premises by continual feeding and watering, the applicant has caused the premises to be in such a state as to be a nuisance pursuant to s 182(4) of the Health Act, which states:
where any house or premises are in such a state as to be a nuisance or injurious or dangerous to health; …

Conclusion

It is unfortunate that Ms Dueschen has no insight as to the impact the keeping of a significant number of cats and continually attracting a large numbers of wild birds to a small suburban block may have on surrounding residences.
In the 2008 proceedings before this Tribunal, the Tribunal, at [119], noted:
… Ms Dueschen appeared to be in total denial of the circumstances in which they find themselves.
In the present case, despite all that has happened since that time, Ms Dueschen, in the Tribunal's view, continues to be in total denial. She believes she and her mother are being discriminated against and that the neighbours and the City are unreasonable in their complaints.
Although the Tribunal found Ms Dueschen to be a polite and intelligent woman, it is clear that her views on what is reasonable, and what may or may not create a nuisance or be acceptable in suburban surroundings, are totally at odds with both her neighbours and the local authorities.
The only written submissions put before the Tribunal by the applicant were contained in a two page letter attached to her original application for review, in which, apart from denying there was issue, stated:
We believe that the officers from Stirling do not fully comprehend the section of the Health Act they are charging us with as much of what they are stating in the 'First Schedule' is obscure to say the least.
Under the Health Act, nuisance by definition means dangerous or injurious to health. However, in the Health Act birds, cats and trees are not included. For obvious reasons.
During the course of the hearing, the Tribunal pointed out to Ms Dueschen that the definition of 'nuisances' contained in s 182 of the Health Act went further than she submitted.
For example, s 182(2) of the Health Act states:
where any animal is so kept as to be a nuisance or injurious or dangerous to health; …
An animal could therefore be kept so as to be a nuisance without being injurious or dangerous to health or, conversely, could be kept so as to be injurious or dangerous to health but not be a nuisance.
It was never the City's contention that the issues complained of were injurious or dangerous to health, although they may well be. It was simply that they were a nuisance. Furthermore, the Tribunal did not find the First Schedule of the notice to be obscure, but rather, it fairly and plainly set out the matters it believed caused a nuisance to exist.
For the reasons outlined above, the Tribunal is satisfied and makes specific findings that:
1)animals, in particular cats, are so kept on the premises as to be a nuisance;
2)due to the large number of wild birds attracted to and frequenting the premises, the premises are in such a state as to be a nuisance; and
3)due to the overgrowth at the rear of the premises, the premises are in such a state as to harbour rats
and those issues need to be abated.

Abatement

In the notices as currently drafted, the applicant is required to abate the nuisances in the manner specified in the Second Schedule. The Second Schedule, as outlined earlier, states:
•All vegetation is to be removed from the premises.
•The placement of animal and bird food and water around the yard of the premises is to cease.
•All cats are to be removed from the premises.
As to the first abatement requirement regarding vegetation, it was clear from questioning the respondent that 'all' vegetation does not need to be removed from the premises, and the report filed on 21 September 2009 clearly confirms this. However, the removal of 'some' vegetation is necessary for the purpose of denying harbourage to rats, with even the applicant admitting, that the premises are overgrown across the back half of the property.
A notice must fairly tell an applicant what he has done wrong and what he must do to remedy it: see Fremanis Investments Pty Ltd v City of Perth [1978] WAR 33; 43 LGRA 1.
The abatement provisions contained in the Second Schedule of the notice will therefore be varied to clearly identify the precise abatement measures to be put in place, which will be:
1)To effectively remove the risk of rat harbourage, the direction that 'All vegetation is to be removed from the property' will be deleted and replaced by:
All groundcover, together with the understorey of all mature healthy trees, is to be removed to a height of 2 metres from ground level.
Any trees which are dead or, in the opinion of a horticulturist will not survive, are to be removed.
All disused material is to be tidied and stacked so as to prevent any harbourage of rats.
2)To avoid attracting large numbers of wild birds, the request that 'The placement of animal and bird food and water around the yard of the premises is to cease' will be deleted and replaced by:
The placing of food and water for wild birds is to cease and no bird or animal food or water is to be placed on the premises.
3)In respect of the abatement requirement 'that all cats are to be removed from the premises', it is clear that there are a significant number of cats at the premises which are an ongoing nuisance to surrounding neighbours. To ensure the effective abatement of that nuisance, the requirement to remove all cats from the premises will remain unchanged and not be varied.

Orders

1.The application for review is allowed in part.
2.Subject to Order 3 below, the notices dated 24 April 2009 and issued to the applicants under section 184 of the Health Act 1911 (WA) are affirmed.
3.The abatement requirements contained in the Second Schedule of the notices dated 24 April 2009 are varied as follows:
(a)The words 'all vegetation is to be removed from the property' are deleted and replaced by the following:
All groundcover, together with the understorey of all mature healthy trees, is to be removed to a height of 2 metres from ground level.
Any trees which are dead or, in the opinion of a horticulturist will not survive, are to be removed.
All disused material is to be tidied and stacked so as to prevent any harbourage of rats.

(b)The words 'placement of animal and bird food and water around the yard of the premises is to cease' are deleted and replaced by:
The placing of food and water for wild birds is to cease and no bird or animal food or water is to be placed on the premises.

(c)For the avoidance of doubt, the direction that 'all cats are to be removed from the premises' is not varied.

I certify that this and the preceding [95] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M SPILLANE, MEMBER

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Citations

DUESCHEN and CITY OF STIRLING [2010] WASAT 64

Most Recent Citation

City of Stirling v Dueschen [2011] WASC 126

Cases Citing This Decision

1

City of Stirling v Dueschen [2011] WASC 126

Cases Cited

1

Statutory Material Cited

3

Dueschen and City Of Stirling [2008] WASAT 181