GADD and SHIRE OF HARVEY
[2007] WASAT 307
•5 November 2007 (ex temporare)
GADD and SHIRE OF HARVEY [2007] WASAT 307
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 307 | |
| DOG ACT 1976 (WA) | |||
| Case No: | CC:1153/2007 | 5 NOVEMBER 2007 | |
| Coram: | MR T CAREY (MEMBER) | 4/11/07 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application successful Order for costs made | ||
| B | |||
| PDF Version |
| Parties: | MARTIN GADD SHIRE OF HARVEY |
Catchwords: | Administrative law Review under s 26(5)(b) of the Dog Act 1976 (WA) of decision refusing to grant exemption Costs |
Legislation: | Dog Act 1976 (WA), s 26, s 31, s 38(2)(b), s 87(4)(b) State Administrative Tribunal Act 2004 (WA), s 87(3) |
Case References: | McLeod and Shire of Harvey [2007] WASAT 44 Pinnock & Anor and Shire of Mundaring [2005] WASAT 13 Robins & Anor and Shire of Harvey [2005] WASAT 28 |
Orders | 1. The decision of the respondent refusing the applicant's application for an exemption under s 26 Dog Act 1976 (WA) to permit the applicant to keep 3 dogs at his place of residence at 40 Lofthouse Drive, Leschenault is set aside.,2. The applicant is granted the exemption sought, on the following conditions:,(i) The exemption applies only to the three named dogs listed on the application form and once any of the dogs are deceased, sold or otherwise disposed of, the exemption ceases to have effect.,(ii) The exemption will cease to have effect on the date of any conviction for an offence relating to the Dog Act 1976 in respect of either the dogs, or any person in charge of those dogs.,(iii) The subject property identified in the application must be kept clear of all animal excreta using proper disposal methods.,(iv) Adequate cover and protection is to be available for the dogs at all times.,(v) The dogs are to be adequately confined in accordance with the Dog Act 1976.,(vi) Access is to be given to the Council for an annual inspection of them or more regularly if the Council so determines.,3. The respondent is to pay the applicant's costs for his travel today fixed at $100.00 payable within 14 days. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : DOG ACT 1976 (WA) CITATION : GADD and SHIRE OF HARVEY [2007] WASAT 307 MEMBER : MR T CAREY (MEMBER) HEARD : 5 NOVEMBER 2007 DELIVERED : Edited reasons delivered extemporaneously on 5 NOVEMBER 2007 FILE NO/S : CC 1153 of 2007 BETWEEN : MARTIN GADD
- Applicant
AND
SHIRE OF HARVEY
Respondent
Catchwords:
Administrative law - Review under s 26(5)(b) of the Dog Act 1976 (WA) of decision refusing to grant exemption - Costs
Legislation:
Dog Act 1976 (WA), s 26, s 31, s 38(2)(b), s 87(4)(b)
State Administrative Tribunal Act 2004 (WA), s 87(3)
Result:
Application successful
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Order for costs made
Category: B
Representation:
Counsel:
Applicant : Selfrepresented
Respondent : Mr G Gale (Acting as Agent)
Solicitors:
Applicant : Self-represented
Respondent : Shire of Harvey
Case(s) referred to in decision(s):
McLeod and Shire of Harvey [2007] WASAT 44
Pinnock & Anor and Shire of Mundaring [2005] WASAT 13
Robins & Anor and Shire of Harvey [2005] WASAT 28
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Summary of Tribunal's decision
1 This application concerned the review of a decision of the Shire of Harvey not to grant the applicant an exemption under the Dog Act 1976 (WA), the effect of which would have been to allow him to keep a third dog on his residential property. The only reasons advanced by the Shire of Harvey for its refusal were that under the terms of its local law only two dogs were permitted, that the applicant was aware of the requirement for an exemption and that he proceeded to acquire the third dog before seeking the exemption.
2 As a number of cases in the Tribunal now makes clear, there are some "general indicia" which should be considered by decision-makers in reaching a decision on an exemption application and their consideration of those indicia should be reflected in the reasons for decision provided by a decision-maker. That this did not occur was the more notable in this case after the Shire of Harvey was invited by the Tribunal to reconsider its decision having regard to a previous Tribunal decision which clearly identified the indicia. The Tribunal set aside the Shire of Harvey's decision and ordered that the exemption be granted on conditions. It also ordered that the Shire of Harvey pay the applicant a contribution for his costs.
3 The Tribunal gave its decision orally following the hearing. Its reasons, taken from the transcript, and edited in minor respects to aid clarity, were as follows.
Introduction
4 The applicant sought review of the Shire's decision to refuse to grant an exemption under s 26, Dog Act 1976 (WA) (Dog Act), to permit the applicant to keep three dogs at his place of residence at 40 Lofthouse Drive, Leschenault.
5 On 28 May 2007, the applicant submitted, on the respondent's pro-forma application document, his application for exemption from the local government law of a maximum of two dogs per residence. He already kept two registered Irish Wolfhounds on the property.
6 According to his application, the third dog, an Irish Setter puppy, was a replacement for another Irish Setter which had died, in relation to which the applicant had previously received exemption from the Shire. It is common cause that on 20 April 2006, the applicant was granted exemption for the keeping of the two Irish Wolfhounds and the
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- Irish Setter, which had since died, on a number of conditions, including that the exemption applied only to those dogs and once any of the dogs was deceased the exemption was withdrawn.
7 The puppy was already on the applicant's property at the time of his application to the Shire. The applicant explained that the puppy became available shortly after the death of the older dog and that as the only change to his property since obtaining the original exemption was the addition of more fencing, he had assumed that his application would be received favourably.
Invitation for the Shire to reconsider decision in line with the McLeod case
8 The applicant was notified of the respondent's decision by a letter dated 11 July 2007. The letter advised that at the meeting of the Shire's Council on 10 July 2007, Council had resolved not to grant an exemption on the grounds that the approval was not in keeping with the Council's dog local laws, and that the applicant was aware of the requirement under the Dog Act to make application prior to obtaining the third dog.
9 The matter has been the subject of two directions hearings before the Tribunal. On 16 August 2007, I made an order in the following terms:
"The Shire of Harvey is invited to reconsider its decision pursuant to s 31 of the SAT Act, in accordance with reasons for decision in McLeod and Shire of Harvey [2007] WASAT 44, particularly at paragraphs [58] to [59]."
10 The directions hearing was also adjourned to 13 September 2007 to enable that reconsideration to occur.
11 In McLeod and Shire of Harvey [2007] WASAT 44 (McLeod), the same Shire had refused the applicant's application for exemption. As occurred in this case, its Council voted against its officer's recommendation to refuse the exemption.
12 Unlike this case, a small number of objections were received and according to the reasons for decision in McLeod, the Shire's case for refusal mainly revolved around the complaints or objections received from the applicant's neighbours. In the present case, despite the neighbouring owners being notified of the application by the Shire and the applicant advertising his intention in the local media, no objection was received.
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13 The Tribunal in McLeod said at [58]:
"The Tribunal has now published three reasons 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 indicia. Where a respondent has not done so it might be a proper case for the matter to be initially sent back for reconsideration by the local authority under s 31 of the SAT Act."
14 The general indicia referred to in [58] of McLeod, as gleaned from McLeod itself, but also two other Tribunal decisions, Pinnock & Anor and Shire of Mundaring [2005] WASAT 13 (Pinnock), and Robins & Anor and Shire of Harvey [2005] WASAT 28, include:
• attributes of the dog, such as their breed, size, nature, whether de-sexed, and any history of complaints;
• the size, location and zoning of the premises at which the dogs are housed;
• the conditions of the dogs' accommodation, for example, the standard of fencing, shade, security, cleanliness, and factors which might affect their welfare;
• other factors such as aggregation of dogs in the same area, the applicant's experience in and methods of handling dogs, and motivation in obtaining a third dog.
Consideration
15 In the Pinnock case, Senior Member Raymond, at [15], said:
"The purpose of the Dog Act is to minimise any nuisance associated with the keeping of dogs, and to ensure appropriate licensing of kennel establishments."
16 As is reported in McLeod, in Pinnock, the Tribunal set aside the decision of the Shire of Mundaring, partly because the Shire had misunderstood the regulatory regime it was administering, and also on the basis that there was
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- not the slightest indication of the dogs causing any nuisance of any kind. The view I have taken of the Shire's decision-making in this case is that it has similarly misunderstood the regulatory regime that it was administering. I will return to this.
17 The reason for the invitation under s 31 of the Dog Act issued to the Shire of Harvey on 16 August 2007 was that it was clear that the Council had not structured its primary decision-making around the general indicia to which I have referred. In fact what had occurred was that the officer's recommendation that the exemption be granted, on the same sorts of conditions as found favour in McLeod, had been founded on that indicia, but the Council refused the application on the express basis that the application was not in keeping with the local law limiting the number of dogs to two, and that the applicant was aware of the requirements to make application for exemption prior to acquisition of the third dog.
18 As was made quite clear in Pinnock, it is not an answer to an exemption application that the local law limits dog numbers. The very existence of an exemption assumes that the local law requirement is subject to being overturned in individual cases.
19 As for the second expressed ground, there is nothing in terms of s 26 of the Dog Act itself which would bar an exemption application simply by reason of the fact that a third dog is already on the subject premises, although other consequences might flow from that fact.
20 It will be noted that in McLeod there were three dogs already present at the time of the application, but the Shire did not take the point. Indeed, that is also true of the first exemption sought and obtained by Dr Gadd.
21 As was said in Pinnock at [13]:
"It is apparent from the documentation provided that neither the officer of the Council, nor the Council's officers who investigated the matter, not the subcommittee which made their recommendation to Council gave any consideration to the criteria on which any exemption should be granted. There was simply a strict application of the local law. This represents an unfortunate deficiency in procedure, because it results in any application for an exemption being illusory, and is likely to result in unnecessary appeals to this Tribunal."
22 The officer who investigated the matter and made the recommendation to Council in this case clearly has considered the indicia.
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- The problem I have had with the Council's response is that the recommendation was refused, and in the reasons given in the minutes of the meetings, in the respondent's statement of issues, facts and contentions, and in the submissions made by their representative, Mr Gale, at the hearing today, there has simply been no regard to anything other than the fact that the dog was on site before the application was made. That is not a factor under s 26 of the Dog Act, at least, which is relevant. In any event, the reasoning of Council has not dealt at all with the relevant indicia.
23 It is therefore of some concern to the Tribunal that while once again the administration officer appears to have understood what the relevant criteria for the Shire's consideration were, the Council does not. The reason given for its reiteration of its previous decision and its reasons supporting its decision as reconsidered before the Tribunal are, in substance, identical to its original reasons. For the reasons I have given, those reasons are insufficient to permit the decision to stand.
24 I turn then to the matters which are relevant to determining the merits of the application for exemption. My findings are in summarised form, as the Shire does not put its case nor seek to argue that the merits of the exemption application were against the applicant.
25 The character of the two Irish Wolfhounds is not the subject of adverse comment or any complaint. As has been said in previous cases, there is an absolute right, subject to a case where a dog is a nuisance, as that word is defined in s 38(2)(b) of the Dog Act, to keep two dogs on a premises. In any event, no complaints were made over the period that the applicant kept those dogs and the first Irish Setter on his premises.
26 Second, the Shire does not argue, and there is no evidence tending to show, that the Irish Setter puppy exhibits any behavioural problems, or may do so in the future.
27 Third, the property is a large semi-rural block of 7762 square metres in a special residential zone. It is not part of suburbia.
28 Fourth, the Shire's officers, in their assessment of the property and arrangements for the dogs were consistent in their praise, as recorded both in the minutes of the Council on 11 April 2006, when the original exemption was permitted, and 10 July 2007, when exemption was refused. Going on those reports, the fences and security are adequate, the property is clean, shade and water are good, and the condition of all dogs excellent.
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29 As I have said, these are the types of factors which go to the merits of the decision which has been made, and they all go in favour of granting the exemption. The Shire's decision to refuse it is and can be explained only by reference to the facts that it failed to take these relevant factors into account, and that it took irrelevant factors into account, even after the s 31 invitation which directed it to what the relevant factors are.
30 To adopt the words of Senior Member Raymond in Pinnock at [20]:
"If a power exists to consider an exemption, which it does, it would be difficult to imagine a less controversial application."
Costs
31 This is now the third decision of this Tribunal concerning applications against the Shire for exemptions under s 26(3) of the Dog Act. Read together, these decisions make quite clear what is required of the Shire in its consideration as primary decision-maker. Its attitude so far has resulted in potentially unnecessary applications to the Tribunal, as its approach to deciding the applications to it has not allowed the correct and preferable decision to be made on the merits.
32 The applicant sought an order for costs in the sum of $100 to reimburse him for the cost of travel to and from Perth for the hearing. That is an expense which might be the subject of a costs order - see s 87(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
33 The question is whether any costs order should be made.
34 I note that s 87(4)(b) of the SAT Act allows as a circumstance in which an order for costs might be made where a decision maker has not genuinely attempted to make a decision on its merits.
35 I consider that s 87(4)(b) does apply to this case. In my view, the Shire should have been aware of the requirements to consider the "relevant general indicia", as that term is used in the McLeod case, firstly, because they were the respondent in the McLeod case, and in at least one other case of relevance, and secondly, because the order of 16 August 2007, where the Shire was to make a s 31 reconsideration of the decision, explicitly referred to the passage in McLeod. It is not sufficient for compliance with the McLeod criteria to say that the officer had regard to the general indicia in the absence of any evidence to show the consideration the Council gave to those indicia. The only evidence available to the Tribunal is the reasons for the decision post-reconsideration, which are virtually identical to the reasons for the original decision and make no reference to all the indicia.
(Page 9)
36 The Council's decision-making being deficient in this case in the respects I have indicated, an order for a contribution to the applicant's costs in the sum of $100 is appropriate.
Orders
37 The Tribunal makes the following orders:
1. The decision of the respondent refusing the applicant's application for an exemption under s 26 of the Dog Act 1976 (WA) to permit the applicant to keep three dogs at his place of residence at 40 Lofthouse Drive, Leschenault, is set aside.
2. The applicant is granted the exemption sought, on the following conditions:
a) The exemption applies only to the three named dogs listed on the application form, and once any of the dogs is deceased, sold or otherwise disposed of, the exemption ceases to have effect.
b) The exemption will cease to have effect on the date of any conviction for an offence relating to the Dog Act 1976 (WA) in respect of either the dogs or any person in charge of those dogs.
c) The subject property identified in the application must be kept clear of all animal excreta using proper disposal methods.
d) Adequate cover and protection is to be available for the dogs at all times.
e) The dogs are to be adequately confined in accordance with the Dog Act 1976 (WA).
f) Access is to be given to the Council for an annual inspection of them, or more regularly if the Council so determines.
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- 3. The respondent is to pay the applicant's costs for his travel today fixed at $100, payable within 14 days.
I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR T CAREY, MEMBER
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