KEEGAN and SHIRE OF MANJIMUP
[2022] WASAT 40
•11 MAY 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: DOG ACT 1976 (WA)
CITATION: KEEGAN and SHIRE OF MANJIMUP [2022] WASAT 40
MEMBER: MS N OLDFIELD, MEMBER
HEARD: 28 MARCH 2022
DELIVERED : 11 MAY 2022
FILE NO/S: CC 1507 of 2021
BETWEEN: RICHARD KEEGAN
ALISON KEEGAN
Applicants
AND
SHIRE OF MANJIMUP
Respondent
Catchwords:
Dog Act 1976 (WA) - Dogs Local Law - Keeping of dogs - Application for exemption to keep more than two dogs - Dog breeding
Legislation:
Dog Act 1976 (WA), s 7(1), s 16, s 26, s 26(1), s 26(3), s 27(1)
Local Government Act 1995 (WA)
Shire of Manjimup Town Planning Scheme No 2
Shire of Manjimup Town Planning Scheme No 4
State Administrative Tribunal Act 2004 (WA), s 24, s 27, s 29(1), Pt 3, Div 3
Result:
Application dismissed
Decision of respondent to refuse application affirmed
Category: B
Representation:
Counsel:
| Applicants | : | In Person |
| Respondent | : | In Person |
Solicitors:
| Applicants | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Corrigan and Shire of Northam [2009] WASAT 140
Keegan and Shire of Manjimup [2021] WASAT 57
Pinnock & Anor and Shire of Mundaring [2005] WASAT 13
Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286
Robins & Anor and Shire of Harvey [2005] WASAT 28
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Alison and Richard Keegan (the applicants) live at 140 Chopping Road, Manjimup (the Property).
On 23 June 2021 the Shire of Manjimup (the respondent) received an application by the applicants for the registration of six Cavalier King Charles Spaniels - five unsterilised females and one unsterilised male, each over the age of three months.
By a decision of Council at an ordinary meeting on 19 August 2021, that application was refused and on 20 September 2021 the applicants lodged an application for review of that decision with the Tribunal.
Issue for determination
The principal issue for determination is whether the application for an exemption ought to be granted to permit the keeping of six dogs at the property.
Factual background
Except as noted, the following factual background is not in dispute between the parties. For ease of expression, and consistently with the provisions of the Dog Act 1976 (WA) (Dog Act), dogs aged three months and over will be referred to as 'dogs' and dogs under the age of three months will be called 'puppies'.
The applicants live at the property. The property is located within the Manjimup gazetted townsite (Manjimup townsite).
As a result of a complaint, on 18 August 2020 officers of the respondent attended the applicants' property and observed several dogs and puppies on the property. As no one was home, the respondent's officers did not enter the property and were unable to count the animals. Records of the respondent indicated no dogs were registered as living at the property and correspondence was sent out accordingly.
On 25 September 2020 and 12 November 2020 issues including registration of dogs were discussed at the property between officers of the respondent and a person or persons acting on behalf of the applicants. During this period, there were as many as 11 dogs plus puppies living at the property.[1]
[1] Evidence of Rochelle Keegan and Alison Keegan, Hearing Book (HB), page 254.
On 15 December 2020 the respondent received an application[2] for the registration of five Cavalier King Charles Spaniels, being four unsterilised female dogs and one unsterilised male dog. As a part of the standard process of public consultation, the respondent sent notification of the application to the three adjoining landowners. All three responded in opposition to the application.[3] Two of the responses cited excessive barking and the third response appeared to feel approval of the application would exacerbate concerns regarding damage caused by wild rabbits, the potential threat dogs pose to stock, and health concerns related to 'junk' on the property.
[2] HB, pages 246-251.
[3] HB, pages 154-158.
The application was refused by a decision of the Council of the respondent (Council) at an ordinary meeting on 4 March 2021[4] and on 6 April 2021 the applicants lodged with this Tribunal an application to review that decision. At a directions hearing on 28 May 2021, the applicants admitted the presence of six dogs at the property. The applicants were permitted to withdraw their application to the Tribunal.
[4] HB, page 258-259.
On 23 June 2021 the applicants made a further application[5] to the respondent seeking approval for the keeping at the property of six Cavalier King Charles Spaniels, being five unsterilised female dogs and one unsterilised male dog. The respondent again sent notifications of the application to the three adjoining landowners. One response was received,[6] which opposed the application on the basis of excessive barking. In his report to the Council dated 28 July 2021[7] Stephen Burch, (employed by the respondent as a ranger) states the respondent received a telephone call from one of the neighbours confused as to why they had been sent another request for comment.
[5] HB, pages 101-106.
[6] HB, pages 159-161.
[7] HB, page 110.
By a decision of Council at an ordinary meeting on 19 August 2021,[8] it was resolved to refuse the applicants' request for an exemption and that decision was communicated to the applicants by letter[9] dated 23 August 2021. On 20 September 2021 the applicants lodged an application[10] for review of that decision with this Tribunal.
Statutory framework
The SAT Act
[8] HB, pages 115-116.
[9] HB, pages 118-119.
[10] HB, pages 1-17.
The review jurisdiction of the Tribunal is contained within Pt 3 Div 3 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Section 29(1) of the SAT Act provides that when exercising the review jurisdiction, the Tribunal exercises the functions and discretions of the corresponding decision-maker (in this instance the respondent). Section 27 of the SAT Act stipulates the nature of review proceedings is by way of a fresh hearing, and accordingly the Tribunal may consider additional or new information not before the original decision-maker. The purpose is to produce the correct and preferable decision, as at the time of the review.
The Dog Act
Section 7(1) of the Dog Act provides that if a dog is not registered, both the owner and the occupier of the premises at which the dog is ordinarily kept or permitted to live commit an offence punishable by a fine of up to $5,000 where the dog is not a dangerous dog. Section 16 of the Dog Act provides for the procedure by which a dog may be registered.
Section 26 of the Dog Act relevantly provides as follows:
Limitation as to numbers
(1)A local government may, by a local law under this Act -
(a)limit the number of dogs that have reached 3 months of age that can be kept in or at premises in the local government's district; or
…
(2)A local law mentioned in subsection (1) -
(a)may limit the number of dogs that can be kept in or at premises to 2, 3, 4, 5 or 6 only; and
(b)cannot prevent the keeping in or at premises of one or 2 dogs that have reached 3 months of age and any pup of either of those dogs under that age; and
(c)cannot apply to dogs kept at premises that are licensed under section 27 as an approved kennel establishment; and
…
(3)Whereby 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 in the exemption; and
(b)cannot authorise the keeping in or at those premises of -
(i)more than 6 dogs that have reached 3 months of age; or
(ii)a dog under that age unless it is a pup of a dog whose keeping is authorised by the exemption;
and
(c)may be revoked or varied at any time.
…
(5)Any person who is aggrieved -
(a)by the conditions imposed in relation to any exemption under subsection (3); 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.
Section 27(1) of the Dog Act provides as follows:
Licensing of approved kennel establishments
(1)Where, under section 26(1)(a) or (b), a limit is imposed on the number of dogs that can be kept in or at any premises situate in a local government's district area, and a person proposes to keep more than that number of dogs in or at premises in that area that are not exempt from the limitation, the person must apply for the premises in question to be licensed as an approved kennel establishment.
Dogs Local Law
On 29 November 2004 the respondent gazetted the Shire of Manjimup - Dogs Local Law 2004 (WA) (Dogs Local Law) pursuant to the Local Government Act 1995 (WA) and the Dog Act and which relevantly provides as follows:
3.2Limitation on the number of dogs
(1)This clause does not apply to premises which have been -
(a)licensed under Part 4 as an approved kennel establishment; or
(b)granted an exemption under section 26(3) of the Act.
(2)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 -
(a)2 dogs over the age of 3 months and the young of those dogs under that age if the premises are situated within a townsite … as defined in Clause 5.2(1)(b); or
(b)4 dogs over the age of 3 months and the young of those dogs under that age if the premises are situated outside a townsite.
…
4.7Where application cannot be approved
The local government cannot approve an application for a licence where -
(a)an approved kennel establishment cannot be permitted by the local government on the premises under a town planning scheme[.]
Shire of Manjimup Policy 5.2.5
Policy 5.2.5 Applications to Keep Additional Dogs or Cats (Policy 5.2.5) was first adopted by the respondent on 5 May 2016.
An amended policy was adopted by Council resolution at an ordinary meeting on 27 May 2021.
Policy 5.2.5 relevantly provides as follows:
Assessment of Proposals
All applications seeking approval to the keeping of more than the maximum number of dogs/cats prescribed by the relevant Shire of Manjimup Local Laws shall be determined by Full Council. Agenda Items prepared for Council consideration, shall address the following matters to the satisfaction of the Chief Executive Officer:
1.Applications to keep more than the number of dogs/cats prescribed by the Shire of Manjimup Local Laws shall only be supported in the following circumstances:
a.A maximum of three (3) dogs being approved on a single premises within a townsite;
b.A maximum of five dogs (5) dogs being approved on a single premises outside of a townsite;
c.The reason for requesting more than the number of dogs/cats prescribed by the local lane is as a result of:
iTo replace an elderly or sick dog in the family that it is not expected to live;
ii.Sudden family emergency and dog inherited;
iii.Merging of two households;
iv.Where the applicants have had approved to keep more than prescribed number in another local authority.
d.The existing dogs/cats on the premises are registered.
e.The application does not relate to a restricted or declared breed.
f.The property has been inspected and deemed suitable by Council's regulatory officer (Ranger) or other person authorised under the Dog Act 1976 and/or Cat Act 2011.
2.Applications for approval to keep more than the prescribed number of dogs/cats on the following grounds shall not be supported:
a.Just wanting another dog/cat;
b.Rescued a stray and would like to keep it
c.Family member moves home and brings dog/cat;
d.A third party moving into a property (ie a boarder) and bringing a dog/cat with them;
e.Wanting to keep puppies/kittens from litters that have not been disposed of within three months of being born
f.For breeding purposes, unless the owner is a registered breeder and the premises have been approved as an Animal Establishment in accordance with the provisions of the Shire of Manjimup's Local Planning Scheme No 4;
g.Applications seeking to keep declared or restricted breeds.
Approval Conditions
Conditions of approval shall be applicable as deemed necessary by the Chief Executive Officer. Without limiting the generality of the foregoing, approvals are [sic] contain conditions to address the following:
1.This approval relates the keeping of the following dogs/cats only:
•Officer to list each dog/cat by name, age, colour/description, breed, microchip number and registration number.
2.The owner ensuring that the registration and registration details relating to each dog/cat are kept up to date at all times.
3.The animals hereby approved shall not create a nuisance as defined by the Dog Act 1976.
4.Within a townsite, not more than two of the animals hereby approved shall be unsterilized unless the premises have been approved as an 'animal establishment' in accordance with the provisions of Local Planning Scheme No 4.
5.Outside of a townsite, not more than four of the animals hereby approved shall be unsterilized unless the premises have been approved as an 'animal establishment' in accordance with the provisions of Local Planning Scheme No 4.
Case law
The Tribunal has previously considered the exercise of the discretion to grant an exemption regarding the number of dogs to be kept at a premises.
In Pinnock & Anor and Shire of Mundaring [2005] WASAT 13, at [19] - [20] the Tribunal stated:
19In this case, the dogs have been de-sexed and there is no risk of breeding occurring, which could be a source of nuisance. There is no evidence of any complaint concerning the behaviour of the dogs. The exemption requires the grant of an indulgence in respect of only one dog. The dogs are well accommodated and are effectively contained so there is little risk of wandering onto adjoining properties. The council's officer reported that the health and welfare of the dogs and their living conditions were acceptable. There is therefore nothing to point to any risk of behavioural problems causing any nuisance.
20If a power exists to consider an exemption, which it does, it would be difficult to imagine a less controversial application. The decision of the council should be set aside and an order will issue to that effect, substituting for the decision, an order granting the application for exemption.
In Robins & Anor and Shire of Harvey [2005] WASAT 28 at [20] the Tribunal stated:
It is understandable that a local government would require a wellmotivated proposal prior to it granting permission for more than two dogs to be kept on a premises. The local government also has to take several factors into account for example the size and location of the property, fencing, shade, previous complaints from neighbouring residents, other public inputs and the risk that a precedent may be established that in time may lead to further complications, abuse or unhappiness. The council also has to consider factors that may justify the making of an exemption such as the particular circumstances of the applicants, the lack of previous complaints, the breed, the applicant's experience in handling dogs, and the motivation supporting the application for exemption.
In Corrigan and Shire of Northam [2009] WASAT 140 (Corrigan) at [34] and [36] the Tribunal stated:
34A local government, considering an application for an exemption from a local law limiting the number of dogs which may be kept on a property within its jurisdiction, must deal with the application in a practical way. It cannot be expected that the local government will carry out a protracted enquiry or hearing in order to determine applications of this nature. It is appropriate to act on submissions from neighbours, as was done in this matter. Where there are a number of objectors, and the grounds of objection are consistent and will constitute valid grounds if accepted, and are apparently well-founded, that should be a sufficient basis upon which the local government might refuse the application.
…
36Where, however, a large number of neighbours are consulted and all but one have no complaint to make about the behaviour of the dogs in question, it is readily apparent, again generally, that an application for review, in which the applicant gives credible evidence denying the allegations made by the single objector, will have a high likelihood of success. In such cases, the local government must be conscious of putting a higher standard of evidence before the Tribunal.
The applicants' evidence and contentions
The applicants lodged a Statement of Issues, Facts and Contentions[11] (SIFC) and a bundle of documents[12] pursuant to s 24 of the SAT Act, and separately a letter from Manjimup Veterinary Clinic (Vet) dated 2 February 2022.
[11] HB, pages 23-30.
[12] HB, pages 31-86.
The applicants' SIFC discloses the following reasons on which it is claimed they ought to be granted an exemption:
a)Policy 5.2.5 is just a guide and the respondent can choose to grant an exemption for up to six dogs on private premises.
b)The respondent rejected their application because they are not registered breeders, but this is not a valid ground for rejecting their application. In any event, they have agreed to become registered breeders if their application is granted.
c)The respondent has no basis for requiring the applicants to register as a kennel establishment. The infrastructure which must be installed as part of a kennel establishment is unnecessary to their operations and they feel the current zoning of their property would not support the granting of a kennel licence in any event.
d)The applicants were informed when they purchased the property it was zoned rural, and they received correspondence dated 2007 stating their property might be rezoned from rural to special rural. Under a rural zoning they would be permitted to have up to four dogs and so would only be required to seek an exemption for another two dogs.
e)The history of rezoning the property means the respondent is planning to subdivide such properties as theirs into residential blocks. Their property could be subdivided into 10 residential blocks and each block would be permitted to have two dogs, which would be 20 dogs on the same land area.
f)The neighbours have had 15 years to complain but did not. The complaints have been prompted by the application process. The complaints by the neighbours should not be taken into account because they are not substantiated, for example, by the keeping of a barking diary; two of the complaints are by the owners who do not live on the neighbouring properties but elsewhere; concerns regarding the risk to cattle are unfounded as the dogs have never escaped the property and they are no more responsible for the presence of vermin than any other landowner (vermin are endemic to the region); and point to the storage of hay on a neighbour's property as being more of an issue in relation to vermin.
g)The current rangers employed by the respondent 'have got it in for' the applicants.
h)The failure to register cats and dogs is acknowledged, but the applicants contend it was the fault of the previous head ranger for failing to 'make us register'; and failure to register (or re-register on time) is not a basis on which other owners have lost their dogs.
i)The applicants have been breeding dogs for over 30 years in the Shire of Manjimup and there have been no complaints until now.
j)The anonymous complaint was wrong regarding the living conditions of their dogs and if there had been any concerns the Vet would have complained. The RSPCA inspected their property and there were no issues.
k)The failure to microchip the dogs has been addressed and was the fault of the Vet rather than themselves.
At the hearing the applicants were assisted by their daughter Rochelle Keegan, who provided both evidence and submissions on their behalf in addition to those provided by the applicants.
Rochelle Keegan
Ms Keegan believed the respondent had insinuated her parents treated their dogs with cruelty or neglect and strongly rejected any such claim for the following reasons:
a)she attends the property almost every day and takes care of the applicants' dogs when they go away. She knows the dogs are taken to the veterinarian whenever it is necessary and are treated for the prevention of fleas and worms;
b)the dogs are not excessively bred. In accordance with breeder guidelines the dogs are not bred until they are a minimum of 12 months of age; are not bred more than two times consecutively without a break; are bred a maximum of five times; and are not bred past the age of six years before being rehomed;
c)each puppy is taken to the veterinarian for a health check and to receive its first vaccination and microchipping before being sold. Many past purchasers of her mother's puppies have recommended her mother to friends; and
d)RSPCA inspectors twice visited the property and raised no concerns regarding the manner in which the applicants were treating the dogs.
Ms Keegan rejected the objections expressed by adjoining property owners and stated those objections should have played no part in the respondent's decision-making process for the following reasons:
a)two of the property owners do not live at their properties;
b)the concern regarding the safety of stock has no basis because the applicants' dogs have never escaped their property;
c)the applicants are not responsible for the wild rabbits. Rabbits are present on each person's property;
d)she believes there has been no complaint to the respondent in 16 years and this in her view suggests noone has been significantly concerned regarding the dogs; and
e)there is no proof the applicants' dogs are the source of nuisance barking.
Ms Keegan alleged the respondent 'has it in' for the applicants, because the officers of the respondent do not like their authority questioned and have treated the applicants with disrespect. She alleged inconsistencies on the part of the respondent have disadvantaged the applicants, stating:
a)when she reported a stray dog, she observed a ranger employed by the respondent took the dog back to the owners and believed on that basis the owners suffered no penalty. She expressed the belief this happens frequently, but on what basis was not clear;
b)the 'last head ranger knew exactly how many Mum and Dad had, in dogs, and had even been to the property on a couple of occasions … and he didn't have a problem and never made my parents to do anything about it then'.
She believed the property was zoned rural when her parents bought it and referred to a letter[13] dated 5 December 2007 to the applicants from a Mr Howard Evans which suggests the property is part of a parcel of land then zoned rural (Howard Evans letter).
[13] HB, pages 85-87.
She believed the applicants had taken all reasonable steps in complying with the directions from the respondent by reducing the number of dogs at the property from 11 to six (none registered) and reducing the number of poultry also living at the property. She stated the applicants are 'doing the right thing' in keeping the dogs contained in the property and the 'one small thing' in not registering the dogs had been rectified by the application for exemption, and they should not be penalised for that.
She stated that Alison Keegan had been breeding dogs 'her whole life' but she cannot breed with just two dogs. She stated it would not make sense to compel the applicants to get rid of four dogs because there are 'already too many rescue dogs'.
The evidence of Alison Keegan
Ms Keegan stated there is only one set of neighbours who have a valid reason to complain, because they are the only complainants who live on an adjoining property. She stated when those neighbours first moved in, whenever they approached the applicants to complain regarding barking noise, the applicants would attempt to rectify the problem. She gave the example that they have blocked the dogs from seeing the neighbours when they come out of their house. She stated the noise of dogs is only a problem during the night, but because the area is not built up, 'dogs that might be half a kilometre away sound closer'.
Ms Keegan expressed the belief she is entitled to register six dogs on the basis the Dog Act states that a person may apply to register six dogs and stated the applicants believed the property was zoned rural when they first moved there and later purchased the property. Having read the documents filed by the respondent, she conceded her belief regarding zoning may not have been correct. Ms Keegan calculated they moved into the property in April 2006 and purchased the property in April 2007.
She stated she has been breeding dogs for over 40 years and she grew up breeding dogs. Currently her puppies are sold for between $3,500 $4,500 and the number of puppies in each litter ranges from three to seven. Ms Keegan stated she cannot breed with just two dogs and wished to change the male dog but has delayed doing so due to the present proceedings.
Ms Keegan agreed the applicants have not applied for a breeder's licence and expressed a willingness to do so if the application for an exemption were granted. She stated she cannot obtain a pedigree breeder's licence because none of her dogs have pedigree papers but believed she could apply for a breeder's licence with the Australian Association of Pet Dog Breeders (AAPDB). She had read information available online and believes there is an assessment process, which includes DNA analysis and veterinary approval, but the applicants had not contacted the AAPDB or any other organisation for further information and so could not say as a certainty that if they applied for breeder registration that they would be successful.
Ms Keegan conceded she was aware of the requirement to register dogs, but stated she saw no reason to pay fees to register dogs when they are not permitted to leave the property, particularly when owners who allow registered dogs to escape are not made to pay any fine.
Richard Keegan
Mr Keegan declined to provide a witness statement during the hearing. He interjected in response to the statement by Rochelle Keegan that there was no proof the applicants' dogs were the source of any nuisance barking; to state there had been no barking register kept; and that there are many dogs in the area which make a noise on most nights.
Respondent's evidence and contentions
The respondent lodged a SIFC[14] and a bundle of documents[15] pursuant to s 24 of the SAT Act.
[14] HB, pages 91-96.
[15] HB, pages 97-259.
The respondent's SIFC argued that the application for an exemption ought to be refused for the following reasons:
1.0Approval of the application would be contrary to the recommendation listed in Policy 5.2.5 Applications to Keep Additional Dogs or Cats which guides Council to make decisions within the Shire. It stipulates that applications for approval to keep more than the prescribed number of dogs/cats for breeding purposes shall not be supported, unless the owner is a registered breeder and is outside of the town boundary.
2.0Approval to the application as submitted would be contrary to the provisions of the Shire of Manjimup Local Planning Scheme No.4 which prohibits the setting up of an Animal Establishment within the Rural-Residential Zone.
3.0All neighbouring property owners interviewed on the application have provided justified comments, to which all are against the exemption, citing various reasons including nuisance barking and the number of animals being kept on the property.
4.0The applicant has failed to comply with legislative requirements of the Dog Act 1976 for Section 7(1) Dogs to be registered and Section 21(1), (2) Microchipping dog other than dangerous dog and seeking the appropriate approvals to keep more than two dogs as per the Shire of Manjimup Dogs Local Law 2004.
5.0Approval to the application would be contrary to the Dogs Local Law 2004 Part 3.2(2)(a) Requirements and Limitations on the Keeping of Dogs and Part 4.7(a) Approved Kennel Establishments.
The respondent was represented by Stephen Burch, who gave evidence and submissions on behalf of the respondent. Also called as witnesses were Jocelyn Baister (employed by the respondent as Manager of Planning Services) and Craig McSharer (employed by the respondent as a ranger).
Stephen Burch
Mr Burch provided details of an initial complaint made to the respondent, inspections made, notices issued by the respondent, the applications for exemption and the decisions of the respondent in relation thereto. This evidence was unchallenged by the applicants and is repeated above in the description of the factual background to this matter, save for the following points:
a)the applicants challenged the respondent's acceptance of an anonymous complaint.[16] Mr Burch stated the identity of the complainant was known to the respondent. At the request of the complainant, the respondent permitted the complainant to complete the form without including his or her personal details;
b)the applicants challenged the accuracy of the allegations of neglect and puppy farming contained in the respondent's bundle of documents.[17] Mr Burch agreed the RSPCA had inspected the property and had informed the respondent it would not be taking any action in relation to the dogs at the property;
c)the applicants challenged the validity of complaints made by persons who did not live on adjoining properties. Mr Burch stated the interests of owners of adjoining properties could be affected by the application whether or not they lived on the adjoining property and therefore those owners were entitled to comment; and
d)the applicants suggested Mr Burch had previously inspected the property, observed multiple unregistered dogs and taken no further action. This was denied by Mr Burch.
[16] HB, page 170.
[17] HB, pages 163-168 and page 170.
Mr Burch further stated:
a)The term 'Animal Establishment' (as defined in the Shire of Manjimup Local Planning Scheme No 4) (LPS 4) relates to any animal, whereas the term 'kennel' (as used in the Dog Act and Dogs Local Law) relates specifically to dogs.
b)Before applying for a kennel licence, a person must have approval for an Animal Establishment, which means an 'Animal Establishment' must be an approved use under the town planning scheme relevant to the location in question.
c)In his view, at least part of the reason an 'Animal Establishment' is not permitted in residential areas is because it would be undesirable to live in a residential area and have a kennel commence operation next door.
Jocelyn Baister
The evidence of Ms Baister was as follows:
a)The property has been zoned rural residential since the coming into effect of LPS 4 in December 2010. The purpose of rural residential zoning is to provide for low density residential development in a rural setting.
b)LPS 4 prohibits land use as an 'Animal Establishment' in areas zoned 'Rural Residential' without exception.
c)LPS 4 defines an 'Animal Establishment' as including premises used for the breeding of animals for commercial purposes. The term 'commercial purposes' is not defined by LPS 4 so the usual dictionary definition applies. In her opinion, the breeding of puppies for sale constitutes an 'Animal Establishment' under LPS 4.
d)Prior to LPS 4, the property had been zoned 'Special Rural' under the Shire of Manjimup Town Planning Scheme No 2 (TPS 2).
e)Zoning of the property changed from 'Rural' to 'Special Rural' in 2000.
f)The activities of the applicants would fall under the land use 'dog kennel' under TPS 2. That term was defined to mean:
premises used for the boarding and breeding of dogs where such premises are registered by local government and may include the sale of dogs where such use is incidental to the predominant use.
g)TPS 2 prohibited dog kennels in areas zoned 'Special rural'.
h)Records of the respondent indicate the applicants purchased the property in 2008.
i)The Howard Evans letter is not consistent with the respondent's records regarding the zoning history of the property and she therefore considered it incorrect.
The applicants put to Ms Baister the claim that there were plans to permit further subdivision of areas, including the property, which could result in their property being subdivided into 10 lots. Ms Baister's response was:
a)the property cannot be further subdivided at this time, at least in part due to the absence of a reticulated sewerage connection;
b)any further subdivision would depend on decisions not yet made regarding zoning and density, based upon the services available at that time; and
c)there was insufficient information for Ms Baister to express any opinion regarding possible future density.
The applicants put to Ms Baister that, if the property were subdivided, residents would be entitled to two dogs per block and given the possible numbers of dogs which could then reside in the area, the size of the property, why was there a problem with them having six dogs on the whole of the property? The response of Ms Baister was to point to the provisions of the Dog Act and the Dogs Local Law.
Craig McSharer
The evidence of Mr McSharer was as follows:
a)The purpose of the form 'Application to Keep More Than Two Dogs' (application form) is to enable residents of the respondent to seek permission to keep more than the prescribed number of two dogs.
b)Permitted reasons for keeping more than two dogs include the merging of two households, family emergency, to replace a sick or aging dog or where the owning of the dogs has been approved by another local government.
c)Reasons which are insufficient to support an application for more than two dogs include breeding purposes or the swapping of animals for breeding purposes.
d)This information is made clear on the application form.
e)If a person wishes to keep more than two dogs for breeding purposes, they must apply for an 'Animal Establishment'.
f)The key issue in relation to the applicants' application, is the location of the property within the town boundary. However, the applicants' intention to breed the dogs is also an issue and the application form clearly states an exemption will not be granted for breeding purposes.
g)The respondent received a complaint from a member of the public who had requested to remain anonymous. He knows the identity of the complainant but will not disclose that information.
h)The details of the complainant were not included in the documents filed with the Tribunal due to the request for anonymity.
i)Whether or not the complaint was anonymous had little bearing on the matter and it simply caused the respondent to become aware of the large number of dogs at the property.
j)There has been no official complaint made in relation to the applicants regarding excessive barking. He was not aware of any barking diary having been kept in relation to the applicants' dogs.
k)The absence of a formal complaint or barking diary did not invalidate the neighbours' comments regarding excessive barking made in response to the application.
l)The reasons for refusal of the application to keep six dogs at the property did not relate to excessive barking.
m)At the time he attended an inspection of the property, the concerns related to the number of dogs and not the welfare of the dogs. The current issue is not the welfare of the dogs, but that the dogs are unregistered and there are too many.
In cross-examination, the applicants put to Mr McSharer the claim that they had been breeding dogs for 37 years without any prior complaint, in response to which Mr McSharer stated that he believed the respondent had been previously unaware of the number of dogs living at the property.
Consideration
The Dogs Local Law made by the respondent is consistent with s 26(1) of the Dog Act. In determining applications for exemption under s 26(3) of the Dog Act, it is appropriate for the respondent to develop a policy to provide consistency in decision-making and inform the public, provided there is also recognition that there may be instances where it is appropriate to depart from the policy.[18]
[18] Keegan and Shire of Manjimup [2021] WASAT 57 (Keegan) at [108].
Together the Dogs Local Law and Policy 5.2.5 stipulate that persons on premises located within the Manjimup townsite may keep as of right a maximum of two dogs[19] (and the puppies of those dogs) and may apply for an exemption to keep a maximum of three dogs.[20] The basis on which an exemption will be granted includes an acceptable reason for wishing to keep the third dog and that all current dogs at the property are registered.[21] A reason which is not considered acceptable or sufficient is that the additional dog is sought for breeding purposes - unless the applicant is a registered breeder and the premises have been approved as an 'Animal Establishment' in accordance with LPS 4.[22]
[19] Dogs Local Law, cl 3.2(2)(a).
[20] Policy 5.2.5, cl 1a.
[21] Policy 5.2.5, cl 1c and cl 1d.
[22] Policy 5.2.5, cl 2f.
The application by the applicants is inconsistent with the Dogs Local Law and Policy 5.2.5 in the following respects:
a)they seek to keep a total of six dogs on premises located within the Manjimup townsite;
b)none of the dogs living at the property are registered;
c)the keeping of the dogs is for the purpose of breeding; and
d)the applicants are not registered breeders and the property is not an approved 'Animal Establishment'.
Therefore, the question is then whether the applicants have demonstrated any exceptional reason why the Dogs Local Law and Policy 5.2.5 should not apply in the circumstances of their case[23] and that they should be granted an exemption pursuant to s 26(3) of the Dog Act. The parties alleged the relevance of various factors to this issue, and each will be considered in turn.
Policy 5.2.5
[23] Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286 at [28].
The applicants were correct in suggesting the respondent may depart from Policy 5.2.5 if the circumstances merit. The evidence before the Tribunal indicates the applicants are also correct in suggesting an application for approval of a kennel establishment at the property is unlikely to be successful due to its location and zoning. Section 26(3) of the Dog Act provides the requirements for kennel establishments may be set aside if the local government considers it appropriate to do so. The onus is however upon the applicants to establish their situation is one which justifies an exemption.
Relevance of neighbour comments
The respondent cited the opposition of adjoining landowners as a relevant factor and the applicants contended those comments should not be considered.
The relevance of the opinions of neighbours in relation to an application to keep additional dogs is well settled. If some of those neighbours do not reside at the adjoining property, that might be taken into account by the Tribunal in determining the weight to be given to the comments but should not of itself mean those comments are irrelevant or of no weight.
The evidence establishes and the Tribunal accepts that all three adjoining landowners objected to the application and two of those objections[24] cited excessive barking as a reason. Alison Keegan conceded those adjoining landowners who actually reside on an adjoining property have complained directly to the applicants on numerous occasions regarding the barking of their dogs. Both applicants and their daughter appeared to concede dogs could be heard barking, particularly at night, but denied there was any proof the applicants' dogs were the source of the noise.
[24] HB, pages 155-161.
The respondent conceded there has been no formal complaint regarding excessive barking of dogs at the property and the respondent has not collected evidence of the barking of the applicants' dogs. However, as per Corrigan[25] it is not necessary to collect evidence constituting proof beyond reasonable doubt and a local government may consider objections which appear reasonable even if those objections were not also the subject of a formal complaint.
[25] Corrigan at [34] and [36].
It is plain the presence of six dogs and litters of puppies living in outdoor enclosures has the potential to create a material impact on adjoining landowners and the Tribunal finds the objections of the adjoining landowners on the grounds of excessive barking appear wellfounded and are relevant to a decision as to whether the applicants ought to be permitted an exemption.
There was no evidence before the Tribunal and the Tribunal makes no finding regarding the grounds of the complaint regarding rabbits and risks to stock and community health[26] and whether or not those concerns are reasonable.
Failure to comply with the legislation
[26] HB, page 154.
The respondent in its SIFC alleged[27] the applicants:
… took … three months' to register and microchip five dogs, did not register or microchip a sixth dog until an infringement was issued on 4 June 2021, and had not renewed those registrations which were due for renewal on 31 October 2021.
[27] HB, page 95.
The applicants in their SIFC argued[28] the respondent had previously failed to make them register; the lack of microchipping was the mistake of their veterinarian; they had made a mistake in relation to registration of the sixth dog; and the delay regarding the other five dogs was a result of ill health and being absent from the property.
[28] HB, page 24 and pages 26-27.
The parties' evidence, in particular the testimony of Rochelle Keegan and Alison Keegan, satisfies the Tribunal the applicants failed to comply with their obligation to register their dogs and this was not an isolated event[29] but a consistent course of conduct. This is a factor which weighs against the application for exemption.
Intention to seek breeder registration
[29] Keegan at [130].
The applicants provided no basis for the suggestion the policy to require breeder registration for those persons who seek an exemption for breeding purposes was invalid, and accordingly this ground is not successful.
The applicants further contended an intention to seek breeder registration is sufficient compliance with Policy 5.2.5. However, in her evidence before the Tribunal, Alison Keegan conceded her options for seeking breeder registration were limited, applications were subject to an approval process and an application for registration could be unsuccessful. In the circumstances, the Tribunal considers the applicants' stated intention to seek registration as a dog breeder insufficient basis on which to support an application for granting an exemption.
Belief the property was zoned rural
Regarding zoning, the Tribunal prefers the evidence of Ms Baister and therefore concludes the applicants' property was zoned 'Special Rural' at the time of purchase and is now zoned 'Rural Residential'. The Tribunal accepts the respondent's contention the activities of breeding and selling puppies is an 'Animal Establishment' as defined in LPS 4 and therefore is prohibited in areas zoned 'Rural Residential'. The documents lodged by the respondent in relation to the permitted uses in areas zoned 'Special Rural' under TPS 2[30] does not specify uses permitted in areas zoned 'Special Rural'. However, the Tribunal accepts the evidence of Ms Baister that in her professional opinion the activities of the applicants would not have been a permitted use of the property under TPS 2.
[30] HB, pages 148-149.
In any event, zoning is less relevant than location for the purposes of the Dogs Local Law and Policy 5.2.5. Regardless of the zoning of the property under TPS 2 or LPS 4, its situation within the Manjimup townsite results in a prescribed maximum of three dogs[31] and there is nothing before the Tribunal which suggests this limit was materially different at the time the applicants purchased the property.
Implications of subdivision of the property
[31] Dogs Local Law, clause 3.2(2) and Policy 5.2.5, page 2.
The applicants claimed the respondent would, or was planning to, permit the subdivision of the property into several smaller residential blocks. They argued if this were to occur the residents on each of the smaller blocks would be entitled to two dogs and therefore there was no rational basis for the adjoining landowners or the respondent for objecting to their six dogs.
Unfortunately for the applicants, the evidence of Ms Baister was to the effect that the property could not currently be subdivided, there were no plans on the part of the respondent to enable further subdivision in that location; and there was no basis on which she could make any prediction as to if or when further subdivision of the property would be permitted. The evidence of Ms Baister is accepted by the Tribunal. The Tribunal finds the speculation of the applicants as to possible future town planning decisions by the respondent is not sufficient grounds for granting an exemption.
Allegations of bias or inconsistent decision-making by the respondent
The applicants have alleged the present situation has arisen because officers of the respondent are biased against them. Additionally, it is alleged officers of the respondent knew the applicants kept numbers of unregistered dogs at the property and took no action. The applicants state they have carried on the breeding of dogs in the Shire of Manjimup for over 30 years and it is unjust for the respondent to now withdraw its tacit consent and require their dogs to be registered and kept in accordance with the Dogs Local Law and Policy 5.2.5.
These allegations are serious in nature and were denied by Mr Burch and Mr McSharer. The evidence before the Tribunal regarding these allegations does not extend beyond the personal views of the applicants and their daughter. The Tribunal does not accept the applicants' contentions.
No evidence of mistreatment of the dogs
The Tribunal accepts there is no evidence the applicants keep their dogs in poor conditions or are engaging in the practices described as puppy farming. The respondent agreed officers of the RSPCA inspected the property and advised no action would be taken. However, the welfare of the applicants' dogs did not form one of the grounds upon which the respondent denied the application, nor formed part of the respondent's opposition to the present application. There is an obligation upon owners to treat their dogs appropriately and the mere absence of welfare concerns is not a ground on which to grant an exemption.
Too many rescue dogs
The applicants argued it would be unjust to require they rehome four of their dogs because there are 'too many rescue dogs'. However, the applicants gave evidence it was their usual practice to replace dogs regularly:
a)when each female dog reaches the earlier occurring of either the maximum number of litters or the age of six years; and
b)the male dog is replaced from time to time as they feel is appropriate for breeding purposes and, but for the current proceedings, the applicants would have already replaced the male dog they currently own.
Based on the information contained in the application form[32] and the evidence of Rochelle Keegan and Alison Keegan, two female dogs are almost four years old and one female dog is approximately four and a half years old. Accordingly, it would appear even if the applicants were granted an exemption their usual practice would result in the rehoming of one male and three female dogs within two years or less.
[32] HB, page 101.
The Tribunal therefore sees no significant additional imposition upon the dogs or 'dog adoption' organisations if the applicants were required to rehome these dogs in their normal fashion, though somewhat earlier than originally intended, and accordingly this does not form a basis on which to grant an exemption.
Conclusion
Taken separately, or as a whole, the grounds submitted by the applicants are insufficient to satisfy the Tribunal that there is a reasonable basis upon which to grant an exemption to the normal limits upon the number of dogs permitted to reside at the property.
The Tribunal therefore finds the correct and preferable decision is to affirm the respondent's decision to refuse the application.
Orders
The Tribunal orders:
1.The application for review of the respondent's decision dated 18 September 2021 is dismissed.
2.The decision of the respondent to refuse the application of the applicants dated 19 August 2021 is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS N Oldfield, MEMBER
11 MAY 2022
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