Jury v City of Playford Council
[2010] SADC 105
•13 August 2010
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
JURY v CITY OF PLAYFORD COUNCIL
[2010] SADC 105
Judgment of His Honour Judge Cuthbertson
13 August 2010
ADMINISTRATIVE LAW
Administrative Law - Local Government Act 1999 s 256 - review of order to refrain from keeping more than a certain number of dogs - whether order made on demonstrably false or incorrect evidence - whether keeping of dogs amounts to a nuisance
Local Government Act 1999 (SA) s 256; District Court Act 1991 (SA) s 42E; District Court Civil Rules 2006 R 78(1), referred to.
JURY v CITY OF PLAYFORD COUNCIL
[2010] SADC 105INTRODUCTION
On 29 September 2009 an order was made by the City of Playford (“the Respondent”), pursuant to s 254 of the Local Government Act 1999, requiring the Appellant, as occupier of land situated at 11 Worthington Road, Elizabeth East (the Appellant’s home), to remove all but four (4) of the dogs that were kept on her land and to refrain from keeping more than four (4) dogs on the land. (See Ex R2 p 10)
The Appellant appeals to this court against that order.
The matter was initially listed for a full hearing in this Court on 15 December 2009, however it was not reached because of the list of cases for that day. Ultimately the appeal commenced on 3 February 2010. Ms Jury appeared on her own behalf. Mr P Kelly appeared as Counsel for the Respondent.
Party Under Disability
The Appellant initially explained that she was the subject of a limited administration order under the Guardianship Board. She indicated that she had acquired a brain injury as a result of a motor vehicle accident. It became apparent that an Order of Administration had been made by the Guardianship Board in respect of a damages claim arising out of that accident. In consequence I considered it appropriate to determine as a preliminary point whether the Appellant ought be exempted from the need to be represented by a guardian pursuant to 6 DCR 78. I did so notwithstanding that the issue the subject of the appeal is objectively relatively simple.
Rule 78 (1) of the District Court Civil Rules 2006 provides as follows:
78—Representation of party under disability
(1) As a general rule, a person under a disability (a protected person) may only take or defend proceedings through a guardian who has authority to represent the interests of the protected person (a litigation guardian).
Exception— The Court may, however, permit a protected person to act personally in bringing, or taking any step in, proceedings.
(2) The litigation guardian is responsible for the conduct of the proceedings on behalf of the protected person and may take any step in the proceedings and do anything else that the protected person might have done if of full age and capacity.
(3)
A party to an action who becomes aware that another party is a protected person and is not represented by a litigation guardian as required by this rule
must inform the Court of that fact.
(4) A judgment or proceeding of the Court is not invalid because a party was not represented by a litigation guardian as required by this rule, but the Court may set aside the judgment or proceeding if satisfied that the party has been substantially prejudiced through the lack of such representation.
“Disability” is defined in Rule 4 as follows:
disability—each of the following is a person under a disability—
(a) a child;
(b)a person whose affairs are administered (wholly or in part) under a law for the protection of persons suffering from mental or physical disabilities;
(c) a person who is not physically or mentally able—
(i) to manage his or her own affairs; or
(ii) to make rational decisions about taking, defending or settling proceedings (or to communicate decisions to others);
While the Appellant is clearly a person under a disability, as defined in 6 DCR 78 (b), in my opinion she does not fall within 6 DCR 78 (c) thereof as I think she is able to manage her own affairs and is able to make rational decisions about taking, defending or settling proceedings.
That view is consistent with the terms of the Administration Order, dated 23 November 2006, which is limited to the management and conduct of current and future litigation and management of the proceeds of any compensation monies received as benefit of such litigation.
I determined to permit the Appellant, as a protected person, to act personally in the conduct of the appeal.
I did so for the following reasons:
(1) I consider her sufficiently capable to manage her own affairs and to make rational decisions about taking, defending or settling the proceedings.
(2) The proceedings are simple in that they involve a simple issue of whether her dogs are creating a nuisance and the issue on appeal is a simple one, namely whether there are cogent reasons to overturn the decision of the City of Playford in the matter.
(3) It appeared to me that the Appellant was unlikely to be able to obtain legal assistance or a legal practitioner to represent her otherwise. This was confirmed by the Appellant after I had given her time to obtain legal representation.
(4) Finally, the Appellant had the assistance of Mr Ronald Kilian, a non lawyer who attended with her and assisted her to conduct the trial. I permitted him to so assist the Appellant pursuant to 6 DCR 22. (see the cases cited in Lunn’s Civil Procedure in South Australia at 22.25.
Mr Kilian was clearly able to communicate the case for the Appellant and I would like to thank him for the assistance he provided during the trial.
Moreover I have allowed the trial to proceed in an extremely informal manner for the assistance of Ms Jury and Mr Kilian, I allowed witnesses to be called out of order and examination in chief (and cross examination) to exceed the ordinary bounds. I have also taken into account assertions from the Appellant and Mr Kilian from the bar table when strictly they should be given in evidence.
I note that the laws of evidence do not apply and that I am entitled to inform myself in any manner I see fit. (See s 42E District Courts Act, 1991)
Background Facts
The background facts are not in dispute.
On 8 February 2007 the Appellant wrote a letter to the Respondent seeking approval for the keeping of 4 dogs. City of Playford “By-Law No 4 – Dogs”, Section 2.1 reads “A person must not, without the council’s permission keep on any premises more than two dogs”.
By Development application form dated 5 March 2007 the Appellant formally sought permission for the same; (See Ex R2 p 61) and such permission for the keeping of four dogs was apparently granted by the Respondent.
On 20 May 2009 a Community Inspector employed by the Respondent attended the Appellant’s home, at which time the Appellant stated she had 9 dogs. She was advised that she only had permission to have 4 and that she would have to reduce the number back to the allowed number of four. (See Ex R2 p 49)
On 30 June 2009 a Notice of Intention to Make an Order was served on the Appellant (“the initial notice”). (See Ex R2 p 19) This initial notice asserted that the Respondent was of the opinion that “the harbouring of an excessive number of dogs on the property is likely to cause a nuisance or hazard to health or safety.”
The initial notice warned that an order was imminent requiring the Appellant to “Remove all dogs, except for 4 dogs from the property before the 31st of July, 2009.” (See Ex R2, Notice of Proposed Order p 19)
The Appellant was invited to show cause why the proposed action should not be taken, by the making of representations to the Respondent.
On 17 July 2009 a further Notice of Proposed Order was served upon the Appellant in similar form as the initial one. (See Ex R2 p 18)
By email, dated 16 July 2009, the Appellant replied, inter alia,
“At this stage I cannot comply with your wishes as I am seeking legal advice on a legality of a court order that I have” (Sic). (See Ex R2 p 46)
A further email was sent to the Respondent and dated 22 July 2009 which stated, inter alia,
“So why Paul Roberts took that personally stating that no correspondence or messages have been left with the Playford Council is beyond me. I believe this is the way the dog rangers have conducted themselves regarding me.” (See Ex R2 p 45)
On 28 of July 2009 the Respondent wrote to the Appellant granting a one month extension on the order enabling her to seek the necessary legal advice and advising that failure to contact it by 28 August 2009
“will result in this matter being pursued further through the Elizabeth Magistrates court (Sic) for failure to comply with an order made under s 254 of the Local Government Act 1999.” (See Ex R2 p 44)
On 3 September 2009 the Respondent wrote advising that as no contact had been made since its letter of 28 July 2009 it had referred the matter to solicitors to issue a summons. (See Ex R2 p 41)
The Subject Order
On 29 September 2009 an order was made by the Respondent pursuant to s 254 of the Local Government Act. (See Ex R2 p 10) The Order recited that there were a number of dogs on the Appellant’s land generating excessive noise causing nuisance to surrounding residents and that, based on those facts, the Respondent is of the opinion that there are animals on the land causing a nuisance. The Appellant is ordered pursuant to s 254 of the Local Government Act 1999 to abate the nuisance by removing all but 4 dogs and refraining from keeping more than 4 dogs on the land.
It is against this order that the Appellant appeals.
The Relevant Legislation
Local Government Act
254—Power to make orders
(1)A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following table if in the opinion of the council the circumstances specified opposite it in Column 2 of the table exist and the person comes within the description opposite it in Column 3 of the table.
Column 1
To do or to refrain from doing what?
Column 2
In what circumstances?
Column 3
To whom?
1. Unsightly condition of land
To take action considered by the council to be necessary to ameliorate an unsightly condition.
Land, or a structure or object on land, is unsightly and detracts significantly from the amenity of the locality in which the land is situated.
The owner or occupier of the land.
2. Hazards on lands adjoining a public place
(1)
To fence, empty, drain, fill or cover land (including land on which there is a building or other structure).
(1)
A hazard exists that is, or is likely to become, a danger to the public.
(1)
The owner or occupier of the land.
(2)
To remove overgrown vegetation, cut back overhanging branches, or to remove a tree.
(2)
The vegetation, branches or tree create, or are likely to create, danger or difficulty to persons using a public place.
(2)
The owner or occupier of the land.
(3)
To remove or modify a flag or banner, a flagpole or sign, or similar object or structure that intrudes into a public place.
(3)
The relevant object or structure creates, or is likely to create, danger or difficulty to persons using a public place.
(3)
The owner or occupier of the land.
(4)
Where the public place is a road—to take action necessary to protect the road or to remove a hazard to road users.
(4)
A situation exists that is causing, or is likely to cause, damage to the road or a hazard to road users.
(4)
The owner or occupier of the land.
Examples—
·
To fill an excavation, or to prevent drainage of water across the road.
·
To construct a retaining wall or to remove or modify a fence.
·
To fence land to prevent the escape of animals.
·
To remove a structure or vegetation near an intersection.
3. Animals that may cause a nuisance or hazard
To do or to refrain from doing the thing specified in the order in order to abate a nuisance or a hazard to health or safety associated with a live or dead animal or animals, or otherwise to deal with an animal or animals.
A person is keeping or dealing with (or failing to deal with) an animal or animals (whether the animal or animals are alive or dead) so as to cause, or to be likely to cause, a nuisance or a hazard to health or safety.
A person is the owner or occupier of land where an animal or animals are located which may cause, or be likely to cause, a nuisance or a hazard to health or safety, or otherwise to become a pest.
The owner or occupier of land or any person apparently engaged in promoting or conducting an activity.
Examples—
(1)
The slaughtering of animals in a town or urban situation.
(2)
Keeping an excessive number of insects, birds or other animals.
(3)
Keeping bees in close proximity to other property.
(4)
Keeping animals so as to generate excessive noise, dust or odours, or to attract pests or vermin.
(5)
Keeping an aggressive animal, or keeping an animal in a situation where it cannot be adequately contained or may cause danger to the public.
(6)
Failing to deal with a wasp's nest
(Underlining is mine)
Clearly the Appellant is the occupier of the land at 11 Worthington Road and is engaged in the activity of keeping dogs.
It is lawful for the Respondent to make an order directed to the Appellant to refrain from keeping more than 4 dogs if it is of the opinion that the activity causes or is likely to be the cause of a nuisance.
The Respondent claims to have formed that opinion.
There is no suggestion that the Respondent has failed to comply with the procedures required antecedent to the making of an order as set out in s 255 of the Act.
The Nature of the Review
The Appellant has sought a review of the order pursuant to s 256 of the Local Government Act 1999.
Section 256 (3) provides as follows:
256 (3)A person to whom an order is directed may, within 14 days after service of the order, appeal against the order to the District Court.
The Appellant has appealed to the District Court. The appeal is to be conducted pursuant to s 42E of the District Court Act 1991.
42E—Conduct of appeal
(1) The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2) The Court, on an appeal—
(a)is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3) The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
Grounds of Appeal
The grounds of appeal are set out in a document annexed to the Notice of Appeal. Many of the complaints are not appropriate or proper grounds of appeal. Distilling, as best I can the grounds of appeal from the document, the arguable grounds of appeal are as follows:
(1) That the Respondent has relied on demonstrably false or incorrect evidence.
(2) That the activity does not amount to a nuisance.
Material of Which Respondent Based its Decision
The material which the Council had for the purpose of making its initial decision is as follows:
(1) On 23 July 2007 a report from J Huxley that the Appellant has eleven cats and five dogs. (See Ex R2 p 59)
(2) On 30 January 2008 a complaint by a Mr R Wilhelm that there are thirteen dogs at the Appellant’s premises that bark all night long and that this has been going on for months and a request that something be done about it. (See Ex R2 p 58)
(3) On 1 February 2008 a complaint from Mr D Watson that the Appellant’s premises has anywhere between seven and eleven dogs on the property. (See Ex R2 p 57)
(4) On 7 February 2008 a complaint from a Mr R Wilhelm of five dogs barking out of control at the Appellant’s premises. (See Ex R2 p 56)
(5) On 1 April 2009 a complaint from Remax Real Estate Agents that the Appellant has about nine dogs and numerous cats living on her premises. (See Ex R2 p 55)
(6) On 8 April 2009 a complaint by Mr D Watson that there are eight dogs on the Appellant’s premises. (See Ex R2 p 54)
(7) On 8 April 2009 on admission by the Appellant to Stephanie Wood, Community Inspector, that she had eight dogs on the premises. (See Ex R2 p 84)
(8) On 2 May 2009 a letter from Tania Brown complaining about the fighting and non-stop barking of dogs and the unpleasant smell from the Appellant’s premises. Tania Brown claims to have lived at the premises at the time for over a year and claims to often hear the dogs fighting and barking when the owner is not home. She claims that there is also an unpleasant smell near the dividing fence. (See Ex R2 p 52)
(9) On 7 May 2009 a complaint from a Ms Huxley complaining of the constant noise and the amount of dogs at the Appellants property. (See Ex R2 p 51)
(10) An admission by the Appellant to the Community Inspector, John Burgess, on the 20 May 2009 that nine dogs were being kept on the premises. (See Ex R2 p 49)
(11) On 25 May 2009 a phone complaint from Mrs Julie Harris, living next door, that the Appellant had eight adult dogs continually breeding and that the dogs were always fighting and barking and that the pups were yelping all the time. (See Ex R2 p 50)
(12) On 29 May 2009 a statement of complaint of Mrs Julie Harris, of 9 Worthington Road, Elizabeth East claiming that the Appellant owns eight adult dogs and that there is a lot noises like “yelping, thumping and it sounds like the dogs are fighting. This is very loud and happens frequently and often at night time it seems worse.” (See Ex R2 p 47)
(13) On 10 August 2009 a complaint about an ongoing problem with dogs barking at 11 Worthington Road from Mr D Harris. (See Ex R2 p 43)
(14) On 1 September 2009 a complaint from Mrs S M Curtis that there were seven adult dogs and eleven puppies kept at the Appellant’s premises, which “are very noisy.” (See Ex R2 p 42)
(15) On 9 September 2009 a message received from “Erica” from the R.S.P.C.A. saying that ten dogs were discovered living on the property. (See Ex R2 p 40)
Law of Nuisance
In the Law of Torts nuisance may consist of interference with the comfort or amenities of the inhabitants of a property by such things as noise, smoke, smells, vibration, glare etc. (See Trindade, Cane and Lunney, “The Law of Torts in Australia” IVth edition p 168)
The word is not defined in the Local Government Act. The concept, however, is a well understood legal principle and I do not see reason to depart from the commonly accepted legal concept of the word.
The authors of “The Law of Torts in Australia” IVth Edition suggests that an interference with the use and enjoyment of land does not constitute an actionable nuisance unless unreasonable.
Unreasonableness is described as an amalgam of a number of factors being – triviality, give and take, hypersensitivity, locality, time and duration, nature of activity, cautions, proof and type of damage. (See Chapter 4, p 169 – 173)
I have considered all these matters:
Triviality
In my view the nuisance cannot be described as trivial.
Give and Take
I do not consider the interference with the amenities of people living nearby to be a question of give and take within the neighbourhood. It exceeds the ordinary reasonable bounds of “give and take”.
Hypersensitivity
Whereas it is obvious that some people react more adversely to dog barking or other noises in the neighbourhood than other people there is nothing in the material presented to the Respondent which would have suggested to it that the complainants were hypersensitive.
Locality
The locality is a built up neighbourhood of several detached dwellings on small blocks. The barking of seven or eight or more dogs where there are male and female dogs that are mating and where the keeping of the resultant offspring is not an ordinary concomitant of the neighbourhood as to be expected in the ordinary use of the home.
Time Duration
There is nothing to suggest that the duration of the barking is so limited in time as to eliminate it as an unreasonable nuisance.
The Resolution of the Appeal
In this matter I have relied, to a significant degree, on the Respondent’s Book of Documents (see Ex R2) because much of it is uncontroversial.
I have allowed both sides to supplement the case by the calling of new evidence.
In considering whether there are cogent reasons for departing from the decision of the Council being appealed against I have considered three issues:
(1) Has the Respondent complied with the prerequisites for the order?
In my view the conduct of the Respondent in issuing of the order was appropriate and due notice was given to the Appellant to make any submissions on the topic that were appropriate.
I note that the Respondent’s concern as to the number of dogs was made plain to the Appellant as early as 8 April 2009 by Community Inspector Wood and it was not until mid July 2009 that a final Notice of Proposed Order was sent. (See Ex R2 p 18) This document contained an invitation to make representations to the Respondent.
An extension of time was granted to the Appellant (see letter 28.07.09, Ex R2 p 44) and as late as 3 September 2009 a letter warning the Appellant that the matter was being referred to solicitors and inviting further questions was made. (See Ex R2 p 41)
At no stage did the Appellant put forward any submissions or material negating the allegations made by the Respondent.
In particular I find that there has been full compliance by the Respondent with the procedures required by s 255 of the Local Government Act.
(2) Did Council have material justifying the making of the order?
There was no material brought to the attention of the Respondent that might cast doubts on the assertions of Judy Harris, Miss Huxley or Tania Brown.
Thus, the Respondent had information from residents on all sides of the Appellant’s premises asserting that the dogs were creating a nuisance.
In my view the Respondent was entitled to come to the view that what was being complained of amounted to nuisance.
On the material before Council it was entitled to conclude that the conduct complained of was neither trivial nor the result of hypersensitivity nor something to be expected as a reasonable concomitant of the locality nor so confined in time and duration so as to make it unreasonable nuisance on the part of the persons complaining.
It was more than the usual give and take necessary for people living in close proximity to each other.
The conduct was in a residential area and as described was liable to occur over the full 24 hours of the day.
The Respondent requested the Appellant to place more material before it on the question and the Appellant did not do so. (See Notice of Intention to issue
s 254 Order 30.6.09 (Ex R2 p19), Notice of Intention to issue s 254 Order 17.07.09 (Ex R2 p18), letter to Appellant dated 28.07.09 (Ex R2 p 44), letter to Appellant dates 03.09.09 (Ex R2 p 41)).
In those circumstances there was no reason why the Respondent should not accept the complainants as being genuine and truthful and the conduct they described as coming within the definition of a nuisance.
One of the complaints made by the Appellant is that the Council accepted at face value the complaints of the various persons that they spoke to about the Appellant’s dogs. It is suggested that they should have tested in some way the complaints made and canvassed a greater number of nearby residents.
I do not think that it was necessary for the Council to scrutinise the complaints more carefully than was done. The Council’s agents could see the state of the back yard and the number of dogs and the fact that there were puppies present. They did ask the Appellant if there were any matters that the Appellant wished to put before them thus giving the Appellant the opportunity to make criticisms or put forward evidence of neighbours who did not find the dogs to be a nuisance.
In my view it was reasonable for the Respondent to rely on the complaints made at the time and, having had the opportunity to see the witnesses cross examined there is nothing that would change my mind about the genuineness of the complaints.
(3) Does the new evidence that has been led change the position?
The next question is whether the evidence presented should so contradict or qualify the material that was before the Respondent that it should give me cogent reasons to interfere in the decision.
The Appellant gave evidence herself. I have no doubt that she is genuine. She lives alone and conceded that she lives with a large number of dogs the number of which would appear to vary over a period of time. I have no doubt that she dearly loves her animals and that in her limited financial circumstances, and given her intellectual difficulties she does her best to look after them. I also do not doubt that she is genuine when she claims that they do not make undue noise.
The difficulty, however, is that the question of nuisance depends very much on perceptions of individuals. Ms Jury does not perceive that her animals cause undue nuisance or noise.
She called evidence from Mr Kilian who has been assisting her throughout the hearing. I permitted her to do this even though Mr Kilian was in court throughout the proceedings. Unfortunately, he does not live next door nor live near Ms Jury and can only give relevant evidence of his perceptions on the limited occasions when he is present. Although he was doing his best to be truthful and to assist the Court, his evidence does not, therefore, help me to a great extent in determining whether the noise created by the dogs is excessive so as to create a nuisance.
The owner of the premises at number 13 Worthington Road, one Reuben Peterson, was examined by telephone link up. He was in Queensland and
Ms Jury indicated that she wished to call him but had not been able to issue a subpoena or contact him. Mr Paul Kelly of counsel for the Respondent contacted Mr Peterson and arranged for him to be available to give evidence on behalf of the Appellant. It is clear to me that he gave evidence about a different time to the time when the Council formed its view about the dogs being a nuisance.
While accepting that he was giving evidence truthfully with the intention of assisting the Court his evidence was for a different period of time and does not assist me greatly in reaching the question whether there was a nuisance at the time the Respondent made the order.
Determination
I am satisfied that both on the evidence before the Respondent at the time it made the order and on the supplementary evidence provided to me that the presence of so many dogs on the premises of the Appellant is a nuisance to neighbours. The nuisance is created by the sheer number of dogs including dogs whelping and the presence of young puppies. While some neighbours may have a hostility to the Appellant and her situation I do not think it has led to them giving untruthful testimony. I accept their evidence of the noise and that it constitutes a nuisance.
As I am satisfied that the decision was correct and that the necessary preliminaries and pre-requisites for the making of the order was satisfied by the Respondent and that no new evidence casts doubt on the Respondent’s decision, it follows that pursuant to s 42E(3) I have no cogent reasons for departing from the decision of the Respondent.
Accordingly I order that the Appeal be dismissed and the order of the Respondent be confirmed.
I will hear the parties as to costs and any ancillary orders.
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