KEEGAN and SHIRE OF MANJIMUP
[2021] WASAT 57
•27 APRIL 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: DOG ACT 1976 (WA)
CITATION: KEEGAN and SHIRE OF MANJIMUP [2021] WASAT 57
MEMBER: MS KY LOH, MEMBER
HEARD: 29 JANUARY 2021
DELIVERED : 27 APRIL 2021
FILE NO/S: CC 469 of 2020
BETWEEN: ROCHELLE KRISTY MARIE KEEGAN
Applicant
AND
SHIRE OF MANJIMUP
Respondent
Catchwords:
Dog Act 1976 (WA) - Application for exemption to keep more than two dogs - Whether intention to breed up to two dogs can support refusal of application - Compassionate grounds
Legislation:
Animal Welfare Act 2002 (WA), Pt 3, s 47(1)(j)
Dog Act 1976 (WA), s 7(1)(a), s 7(3)(a), s 20(1)(c), s 26, s 26(1), s 26(2), s 26(2)(a), s 26(2)(b), s 26(2)(c), s 26(3), s 26(3)(a), s 26(4), s 26(4)(a), s 26(5)(b), s 27, s 27(1), s 27(2)
State Administrative Tribunal Act 2004 (WA), s 17, s 27(1), s 27(2), s 27(3), s 60(2)
Result:
Application allowed, subject to condition(s)
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Ms A Reeve (acting as representative) |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
In January 2020, Ms Keegan, the owner of three female Cavalier King Charles Spaniel dogs (Bonnie, Ruby and Kimba, who were five years, two years and nine months of age respectively), applied for an exemption to keep the dogs at her home in Manjimup.
The owner suffers from chronic fatigue syndrome. Being unable to have children, the owner treats her dogs as her children.
The Shire of Manjimup is not convinced that the owner can maintain her premises to a standard suitable for the maintenance of the dogs, given her record of warnings issued from the RSPCA and the Shire, as well as complaints by her neighbours.
For reasons set out below, I am satisfied that the owner has addressed the Shire's concerns and will approve her exemption application.
Issue for determination
The primary issue for determination is whether the application for exemption from the dog limit imposed under the Shire's local law should be granted.
In considering the primary issue, the following secondary issues arise:
(1)Does the Shire's Policy 5.2.5 'Keeping of Additional Dogs/Cats' support approval of the application?
(2)Are there any other relevant considerations in assessing the application?
Factual Background
The facts are based on witness oral testimony and documentary evidence submitted by the parties in their bundles of documents filed with the Tribunal.
The Shire relies on the evidence at the hearing of the following witnesses:
(a)Genna Haines, a general inspector for the Royal Society for the Prevention of Cruelty to Animals (RSPCA), and who holds a diploma in government investigations from the RSPCA and certificates from various institutions relating to animal care and management, including the University of Edinburgh;
(b)Mr Stephen Burch, a ranger for the Shire, who deals with animal welfare complaints; and
(c)Mr Craig McSharer, a ranger for the Shire, and who has completed some training through TAFE in dog and cat management and also in regulatory compliance issues.
The owner relies on her own testimony and that of the following witnesses whom she called at the hearing:
(a)Kirsten Butler, a disability support worker who has provided support to the owner for the last 18 months to two years;
(b)Tania Dodds, a disability support worker who has provided support to the owner in approximately the last 12 months; and
(c)Alison and Richard Keegan, the owner's parents.
For ease of nomenclature, given the distinction in the Dog Act 1976 (WA) (Dog Act) drawn between dogs that have reached the age of three months and dogs under the age of three months, the former will be referred to as 'dogs' and the latter will be referred to as 'pups' hereinafter in these reasons for decision. The reference to 'dogs' and 'pups' in these reasons exclude 'dangerous dogs' within the meaning of the Dog Act.
Evidence – background facts
The owner resides in rental premises at 37 Collier Street, Manjimup located within the Manjimup townsite in a residential area, and is surrounded by other occupied residential properties.
Prior to August 2018, she lived in a rental property in Deanmill, also within the Shire of Manjimup.
Evidence - visits and inspections by Shire officers to premises
There were several inspections from the Shire rangers and an RSPCA inspector in the course of the owner's tenancy at the premises due to complaints about amenity issues, such as odour and barking, and concerns for the welfare of her animals, including the number of animals and overcrowding.
26 October 2018
Mr Burch first attended the premises on 26 October 2018 whilst the owner was not in attendance. He observed that there were three dogs and approximately five pups in the backyard of the premises.
17 January 2019
Shire officers inspected the premises again on 17 January 2019 in the owner's presence, and issued two notices on the spot requiring compliance with the Shire's Health Local Laws 1998 dealing with animal enclosures, disposal of dead animals and limitations on the number of poultry.
The following number of animals were observed at the inspection:
(a)50 week-old chicks;
(b)70 quails;
(c)50 large chickens
(d)50 budgerigars;
(e)11 large rabbits;
(f)two dogs; and
(g)unknown (greater than three) number of grown cats.
31 January 2019
On 31 January 2019, Messrs Grayson Hindmarsh (the Shire environmental health officer) and Burch, as well as Ms Haines, attended the premises in the owner's presence. Mr Burch had attended to issue a direction to the owner to register her dogs, whilst Mr Hindmarsh was there to follow up on the concerns relating to the poultry.
In issuing his direction, Mr Burch also informed the owner that she needed to seek an exemption for keeping more than two dogs at the premises.
Mr Burch observed that there was a large amount and variety of faecal matter in the backyard that appeared to have been there for a few days, and he could smell faeces and urine under the patio. He observed a large number of poultry, with carcasses of deceased poultry remaining, including a decomposing carcass leading him to think it had been deceased for some time.
Mr Burch said that he saw four dogs and 12 pups. The Shire sought to adduce a photograph apparently taken at that inspection that showed five dogs. Whilst not bound by the rules of evidence, I refused that application as the late notice of the photograph caught the owner by surprise, and would cause prejudice to her case. The owner objected to the late tender, and the Shire did not provide any reason for not disclosing the photographs despite discovering them six months before the hearing.
Mr Burch's testimony following the Shire's failed application then assumed that there were five dogs present at the inspection. I find that his original evidence that there were four dogs is more reliable, and will disregard his later impression that there were five dogs at the inspection.
8 October 2019
Another inspection by the Shire officers occurred on 8 October 2019 in the presence of the owner.
Mr Hindmarsh noted that there were approximately 200 poultry of varying age, several rabbits, four dogs and nine pups.
Mr Hindmarsh issued written directions for the owner to:
(a)remove and reduce the number of poultry to a maximum of 20;
(b)remove the dog excrement from the rear of the property and clean and sanitise the rear verandah and hard stand area adjacent to the verandah; and
(c)cease the breeding of pups at the property until compliance was achieved with the Shire's Dogs Local Law 2004 (Dogs Local Law).
Mr Burch confirmed that there were written and verbal barking complaints by the owner's neighbours, although he conceded that the neighbours had not been required to complete barking dog diaries, which was the normal procedure to undertake if the Shire could not resolve the issue.
January 2020
In early January 2020, Mr Burch returned to the premises with Mr Hindmarsh to assist the latter on the poultry matters.
Mr Burch noted that there was still an odour, but acknowledged the owner had performed a satisfactory job in attempting to clean the premises. In particular, while there was some faecal matter, it was not of a concerning amount.
Mr Burch observed four dogs at that inspection. When asked, the owner indicated to him that she would apply to keep more than two dogs.
The owner submitted the exemption application on 16 January 2020, but re-submitted the application on 31 January 2020 using the correct form provided.
12 February 2020
Mr McSharer was responsible for undertaking an initial property inspection and a survey of the neighbours in assessing the exemption application.
He had previously visited the premises a number of times to follow-up on her neighbours' complaints.
Mr McSharer expressed concern about the lack of any real kennel, the general cleanliness of the premises and the bowls of stagnant water in the premises.
He observed an amount of unidentified material on the ground which emitted a strong odour. He noted that the outdoor area was not confined to chickens, although the area was intermittently separated by fences.
Whilst acknowledging that there were mattresses in the back verandah for the dogs, it was his opinion that the premises were not suitable for the three dogs as there was no wall to protect them nor provide them with a sense of safety.
When pressed as to whether there was a requirement by law for the dogs to be in a kennel, Mr McSharer stated that it was RSPCA's best practice for dogs to be housed in an enclosed space so that they can stand, sit and turn around.
Mr McSharer had taken photographs of the premises, which showed, in my view, some level of untidiness in the yard area and the back verandah, as well as a pile of dried vegetation. I did not notice any faecal matter in the photographs.
Mr McSharer conducted a verbal survey with four neighbours, who had all declined to support approval of the exemption application.
One of the responses had raised concerns about vermin, barking, animal welfare, the number of animals already at the address, and smell.
It appears this neighbour also provided a complaint by email to the Shire about birds being kept at the premises, in particular, the increase in vermin attracted to the bird feed scattered on the front verandah. There were also concerns that the owner increased her 'total animal hoarding' after each Shire officers' visit.
Of the remaining three neighbours, two raised issues with barking, and one was concerned about the welfare of existing pets or animals.
In cross-examination, Mr McSharer denied the suggestion that conducting the survey verbally rather than in writing could allow coercion or persuasion, and relied on the survey responses being recorded in writing and countersigned by the neighbours.
Evidence - inspections to premises by RSPCA inspector
In early January 2019, following an inspection of the premises, Ms Haines issued two directions under s 47(1)(j) of the Animal Welfare Act 2002 (WA) (Animal Welfare Act) to provide proper and sufficient water and feed to all the animals located at the premises.
Ms Haines had observed three spaniel dogs and nine pups at that inspection.
Whilst concerned about overcrowding of the rabbits and birds, Ms Haines' concern did not extend to the dogs and cats, who she considered had ample space.
At another inspection on 31 January 2019, Ms Haines could see that the owner had made a lot of effort to comply with the directions, and was satisfied that all animals had been provided with sufficient feed and water, and with the level of care provided to the animals.
The owner had reduced the number of animals, including surrendering two kittens and two rabbits, and had cleared up the deceased animals.
Ms Haines did, however, issue two verbal directions to the owner that day about further separation of the birds and water to the animals.
Significantly, Ms Haines considered that the housing for the animals met minimum requirements, and did not have any welfare concerns for the owner's dogs or pups.
Ms Haines has previously issued three written directions to the owner following an inspection at her Deanmill property in July 2018, requiring the owner to provide proper and sufficient water and food to all the animals, to clean and keep clean all animal cages, and to dispose of all dead animal carcasses.
There was also a record of a complaint in February 2014 about the owner's sick kittens. Ms Haines did not investigate this complaint, and there are no records of a property inspection being undertaken.
Owner's witnesses evidence – condition of premises, animal welfare
Ms Butler provides support to the owner twice or thrice a week, with one hour of support being provided in the home. She observed that the animals were well-presented and friendly, and held no concerns about their welfare.
Ms Dodd provides support to the owner once or twice a week for about two hours each visit, assisting with domestic duties and gardens but not with the care and maintenance of the animals. She observed that the dogs were happy and never barked, and she had no concerns for their welfare. She considered that the dogs were the centre of the owner's universe.
Mrs Alison Keegan occasionally visits the premises, and held no concerns for the safety of the animals.
Mr Keegan assisted the owner to move cages and animals following one of the Shire inspections, and some of the animals were moved to his property. He held no concerns for the safety or welfare of the owner's animals.
The owner relies on letters of support from her care coordinators at Life Without Borders, whose observations are in line with those of Ms Butler and Ms Dodd. The coordinators considered that the owner's pets were her 'pride and joy' and played an important role in the owner's health and wellbeing.
The owner's evidence
The owner has suffered from chronic fatigue syndrome for the last 17 years, which is also the length of time that she has owned dogs.
The owner also suffers from other diagnosed conditions such as irritable bowel syndrome, insomnia, headaches, anxiety disorder, hiatus hernia and premature ovarian failure. She has been thrown into early menopause, which prevents her from having children. As a result, she treats her animals, in particular her dogs and cats, like her children.
The owner has had three dogs live with her in her various rental properties in Manjimup for the last 11 years and had 'never had an issue until now'.
Under her current lease agreement, entered into in August 2018, the owner is permitted to keep three dogs, two cats and poultry at the premises.
At the time the owner moved into the premises, the yard was overgrown with trees, shrubs and garden beds with weeds, which took her some time to get under control, taking into account her chronic fatigue syndrome. She was also providing care support to her grandmother who had been diagnosed with dementia at the time she moved into the premises.
At the time of the exemption application, she indicated that she intended to breed all the dogs, although Bonnie would be retired after one more litter and Kimba was too young to breed at the time.
Since the exemption application, Bonnie was sterilised in an emergency caesarean operation. The owner still intends to breed Ruby and Kimba.
The owner registered Bonnie and Ruby with the Shire in November 2018. She renewed their registrations on 15 January 2020, but the Shire refused to register Kimba too, apparently, as a result of this case. I note that the Shire's representative at the hearing accepts that the outcome of the exemption application does not affect the requirement to register Kimba, and that Kimba's registration should not have been affected by this case.
The other dog observed at the October 2019 inspection was an older dog called Sharni, who was also registered in November 2018. The owner had been attempting to re-house Sharni, but only managed to do so after the inspection.
The owner attested to having four dogs, and denied that she had five dogs at her premises at the inspection on 31 January 2019. Given my finding at [21], I am satisfied that her evidence that she had four dogs at the time to be consistent with the evidence of Mr Burch.
The owner states that she complied with the directions issued by the Shire in January and October 2019, and the RSPCA directions. In particular, she was not aware that the breed of chicken and chicks would count towards the poultry limit at the time of the October 2019 inspection, and she rectified the situation after the inspections.
Ms Haines' evidence confirms the owner's compliance with the RSPCA directions, and the Shire has not led any evidence to contradict that position as it relates to the Shire's directions of October 2019.
The owner has progressively reduced her animal holdings with each inspection, and currently have the following number of animals:
(a)three dogs;
(b)two cats;
(c)20 poultry;
(d)five rabbits;
(e)11 budgies; and
(f)22 lovebirds (under her restricted bird licence).
As to the neighbour's complaints, the owner accepts that rodents would be attracted to the bird feed, but regularly baits and relies on her two cats to catch the mice. She denies that there is a build-up of dog excrement and says she picks it up regularly.
She disputes that there is an odour issue, as the Shire officers have only attended on three occasions (and only mentioned it on one occasion), and as the principal complainant (referred to at [38] - [39]) has only been to the premises on a handful of times. Other neighbours have not observed a smell.
She denies that her dogs bark above the acceptable limit to constitute nuisance barking, as the Shire has never required her neighbours to complete a nuisance barking diary (which she understands is required based on her experience in submitting a complaint in 2018).
The owner is confident of managing the clean-up of animal excrement from the back verandah and paving area, as her father has given her a pressure cleaner. She has an outdoor vacuum cleaner to help with cleaning up the bird seed. She can also utilise her supports under the National Disability Insurance Scheme (NDIS) to assist with cleaning the front and back verandahs, as well as an hour per week of gardening support.
The parties' cases
The Shire's case
The Shire says that the application should be refused for the following reasons:
(a)the keeping of additional dogs at the premises with their young and other animals will detrimentally impact on the amenity of the area through odour and noise;
(b)as the owner seeks to continue breeding two dogs on the property, but is not a registered breeder or a member of any canine association or affiliated group, approval of the application would be in direct contravention of Policy 5.2.5 and create an undesirable precedent;
(c)if the application is approved, the owner will not be able to maintain welfare standards for the animals at the premises without further agency intervention, as evidenced by the history of RSPCA notices to the owner;
(d)the owner has failed to comply with the requirements of the Dog Act to register her dogs and to seek approval for exemptions to keep more than two dogs under the Dogs Local Law.
Notwithstanding my invitation that the Shire submit for reconsideration to its council the exemption application following the new evidence of Bonnie's sterilisation, the Shire representative declined that invitation.
The owner's case
As set out in [70] and [71], the owner disputes that there is an odour problem from her premises or that the barking of her dogs causes a noise nuisance.
The owner challenges the validity of Policy 5.2.5 as it is not a local law.
Alternatively, she challenges the validity of a consideration under Policy 5.2.5 where an intention to breed is held against her, despite no legal impediment to breeding the same two dogs if she did not have a third. She also challenges the relevance of the views of her neighbours, as there is no requirement to carry out neighbour interviews under Policy 5.2.5.
The owner is not opposed to becoming a registered breeder, and understands that there is proposed legislation – the Dog Amendment Bill 2013 - that will make that a legal requirement for all dog breeders in any event. The requirement to be a registered breeder should be a condition of approval, rather than a reason for refusal, of the exemption application.
The owner accepts that she needs to make improvements with cleaning out the cages, which she has undertaken after each inspection and continues to do so.
Finally, the owner contests that she was required to make an exemption application any earlier than after 8 October 2019. She admits she had forgotten to make the application until the Shire followed this up with her when she renewed her dog registrations in January 2020. The delay in making the application was thus four months, not 24 months as suggested by the Shire.
Legislative framework
Tribunal jurisdiction
The owner effectively seeks a review under s 26(5)(b) of the Dog Act of the Shire's decision to refuse to grant an exemption from the limit on the number of dogs that can be kept in or at her premises.
This application falls within the Tribunal's review jurisdiction as a matter that expressly involves a review of a decision: s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review: s 27(2) of the SAT Act.
The review is not confined to matters that were before the Shire but may involve the consideration of new material whether or not it existed at the time the decision was made: s 27(1) of the SAT Act. Nor is the review limited to the reasons for decision or grounds for review set out in the application: s 27(3) of the SAT Act.
Dog Act
The long title to the Dog Act relevantly reveals as its purposes the provision for 'the control and registration of dogs', 'the ownership and keeping of dogs' and 'the obligations and rights of persons'.
It is an offence under the Dog Act, on penalty of a fine of $5,000, for an owner to fail to register a dog: s 7(1)(a) and 7(3)(a) of the Dog Act.
Registration is not transferable between dogs, as is apparent from the offence of keeping any dog wearing a registration tag issued in respect of another dog: s 20(1)(c) of the Dog Act.
It is also an offence to keep in or at any premises more than the limit on the number of dogs imposed under a local law mentioned in s 26(1) or any expanded limit by exemption under s 26(3), on penalty of a fine of $5,000, and $100 for each separate and further offence: s 26(4) of the Dog Act.
It is an exception to the offence for the premises to be licensed as an approved kennel establishment under s 27 of the Dog Act: s 26(4)(a) of the Dog Act.
Section 26(1) of the Dog Act allows a local government to set the limit on the number of dogs that can be kept in or at premises in the local government's district by local law.
Parameters are set for such local laws in s 26(2) of the Dog Act that, relevantly:
(a)may limit the number of dogs that can be kept in or at premises to 2, 3, 4, 5 or 6 only (s 26(2)(a)); 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 (s 26(2)(b)); and
(c)cannot apply to dogs kept at premises that are licensed under s 27 as an approved kennel establishment (s 26(2)(c)).
Notwithstanding any local law made by a local government, where that local government is satisfied in relation to any particular premises that the provisions of the Dog Act relating to approved kennel establishment need not be applied in the circumstances, the local government may grant an exemption in respect of those premises: s 26(3) of the Dog Act.
Such exemption may be made subject to conditions, including a condition that it applies only to specified dogs: s 26(3)(a) of the Dog Act.
Where a person proposes to keep a number of dogs in or at any premises greater than the limit imposed under s 26(1) of the Dog Act, and the premises are not exempt under s 26(3), the person must apply for the premises to be licensed as an approved kennel establishment: s 27(1) of the Dog Act.
Relevantly, local laws may require that the dogs in an approved kennel establishment be kept in kennels and yards appropriate to the breed or kind in question: s 27(2) of the Dog Act.
Dogs Local Law
Clause 3.2(2) of the Dogs Local Law sets the limit on the number of dogs which may be kept on any premises, for the purpose of s 26(4) of the Dog Act, at two dogs and the pups of those dogs for premises situated within a townsite.
Consistent with s 26(4) of the Dog Act, the limit does not apply to premises which are licensed as approved kennel establishments or have been granted exemptions under s 26(3) of the Act.
Policy 5.2.5
Policy 5.2.5 was adopted by council at its ordinary meeting of 5 May 2016. It provides that proposals for exemption are to be determined by the Full Council, and agenda items submitted to the council shall address specified matters.
Amongst the specified matters, applications shall only be supported in the following relevant circumstances:
(a)A maximum of three dogs being approved in a single premise within a townsite;
(b)[inapplicable]
(c)The reason for requesting more than the limit is as a result of:
(i)to replace an elderly or sick dog in the family that is not expected to live;
(ii)sudden family emergency and dog inherited;
(iii)merging of two households;
(iv)where the applicants have had approval to keep more than the limit in another local authority.
(d)The existing dogs 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[.]
Applications will not be supported on the following grounds:
(a)just wanting another dog;
(b)rescued a stray and would like to keep it;
(c)family member moves home and brings dog;
(d)a third party moving into a property (ie. a boarder) and bringing a dog with them;
(e)wanting to keep pups 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.
(g)applications seeking to keep declared or restricted breeds.
Policy 5.2.5 sets out proposed conditions that the Shire's Chief Executive Officer may impose on any approval of an application.
Animal Welfare Act
The long title to the Animal Welfare Act relevantly reveals as a purpose the provision for 'the welfare, safety and health of animals'.
Part 3 of the Animal Welfare Act provides for regulations to be made about animal welfare, safety and health, and for offences to be created related to animal cruelty and other inhumane and improper treatment of animals.
A general inspector is charged, amongst other things, to enforce Part 3 of the Animal Welfare Act.
Under s 47(1)(j) of the Animal Welfare Act, an inspector can give any direction to a person in control of an animal that the inspector considers are necessary to protect the welfare, safety and health of the animals.
The penalty for failing to comply with any such direction is $20,000 and imprisonment for one year.
Primary Issue – should exemption application be granted?
Secondary issue 1 - Is the application supported by the Shire's Policy 5.2.5?
The legislature has empowered the Shire to set the limit on the number of dogs that a person may keep in or at his or her premises in the townsite, and it is thus for the owner to satisfy the Shire (and the Tribunal on review) that there are circumstances and grounds for supporting the application.
In the absence of constraints in s 26(3) of the Dog Act on how the Shire is to determine exemption applications, it is appropriate for the Shire to produce a policy to guide its decision-making, and it is entitled to apply that policy provided applicants are given the opportunity to show that there are exceptional reasons why it should not be applied in their case: see Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286 (Re Romato) at [26] and [28].
I therefore reject the owner's challenge to the validity of Policy 5.2.5.
Compassionate grounds
Policy 5.2.5 sets out compassionate reasons which justify supporting an approval, and those which do not. The owner's application raises a compassionate reason for approval - that is, that she suffers from chronic fatigue syndrome and other health conditions that elevate the significance of her dogs to something akin to children to her. Unfortunately, such a reason does not fall within any of the compassionate reasons set out in Policy 5.2.5.
Notwithstanding that it does not fall within a specified compassionate reason, it is a fundamental principle of administrative law that a decisionmaker should not be bound by an inflexible application of policy: Re Romato at [27] - [28].
The spirit of compassion clearly resounds in Policy 5.2.5. I do not consider it a stretch to extend the policy to the owner's personal circumstances, that being sufferance of a physical disability and health conditions which heightens her dependence on the companionship of, and her connection to, her dogs beyond that of a non-disabled person, which special connection is recognised by her care support workers and coordinators.
Intention to breed additional dog or all dogs?
As to whether the owner's intention to breed Ruby and Kimba is a ground which cannot be supported by Policy 5.2.5, the Shire did not press an interpretation on whether that intention must apply only to the additional dog (Kimba) or to all of the dogs.
If the latter, that interpretation should not be supported, as that will impose a more severe restriction than even that imposed under the Dog Act, which sets constraints on the keeping (but not the breeding) of up to two dogs.
Based on the former interpretation, in my view, an exception should still be created where one of the original two dogs will not be kept for breeding (such as in the case of Bonnie). This will ensure consistency with the implied licence to breed up to two dogs that is inherent in s 26(2)(b) of the Dog Act.
Suitable premises
Ultimately, the only real obstacle to the owner's exemption application under Policy 5.2.5 is that the premises must be considered 'suitable'. I read that requirement as being 'suitable for keeping an additional dog'.
The Shire ranger tasked with assessing that requirement, Mr McSharer, expressed concern about the lack of any real kennel and the cleanliness of the premises.
As to the lack of kennels, despite Mr McSharer's view that it constitutes RSPCA's best practice, I consider that an irrelevant (and ultimately onerous) consideration, as there is no legal requirement to establish kennels at the premises unless the premises was an approved kennel establishment.
In discounting Mr McSharer's concern about the lack of a kennel for the dogs, I also rely on Ms Haines' evidence that she considered that the housing for the animals (which include for the dogs) met minimum requirements, and she did not hold concerns for the welfare of the dogs at her last inspection. I also rely on the evidence that another of the Shire rangers, Mr Burch, had never raised concerns as to the housing of the dogs.
As to the general cleanliness of the premises, the owner has conceded that there is room for improvement. I accept that she has made satisfactory and progressive efforts at responding to all directions issued by the Shire and the RSPCA, has significantly culled her animalholding, and has additional cleaning tools and support from NDIS to address cleanliness issues.
Not only has the Shire not alleged that she has breached the set of directions issued in October 2019, they have also not alleged that further written directions have been issued by the Shire or the RSPCA since then. Indeed, at his last inspection in January 2020, Mr Burch acknowledged that the owner had performed a satisfactory job in attempting to clean the premises.
In the circumstances, there is sufficient evidence for me to find that, despite the historical challenges faced in keeping the premises clean, significant effort has been made by the owner since October 2019 to remedy these concerns.
I am therefore satisfied that her premises are currently suitable for keeping an additional dog such as to satisfy that requirement under Policy 5.2.5, and that the exemption application is otherwise supported by Policy 5.2.5.
Secondary issue 2 – Are there any other relevant considerations in assessing the application?
History of Shire and RSPCA directions
I accept that, as factor against approval of her application, there is a history of directions from the Shire and the RSPCA that brings into question the ability of the owner to maintain appropriate conditions for housing her animals (in particular, to keep it clean from animal excrement and dead animal carcasses) and to maintain appropriate welfare standards for her animals (in particular, to provide them with proper and sufficient water and food).
Less of a factor is her difficulty with abiding by the limit on the number of poultry she kept, which issue seems now to be resolved.
As stated in [120] - [121] however, balanced against those factors is the concerted effort which the owner has made since those inspections and directions, and acknowledgement in follow-up inspections that the owner has substantively addressed the issues raised in the directions.
On balance, I am satisfied that the owner has dealt with her shortcomings identified in those inspections, and do not share the Shire's concerns that she will not be able to maintain welfare standards without further agency intervention (as evidenced by the last such intervention being October 2019).
Non-compliance with Dog Act
I accept that the owner has, since Kimba turned three months old, failed to comply with the requirements of the Dog Act in registering Kimba until making application to do so in January 2020. Since January 2019, she also failed to comply with the requirements of the Dog Act by keeping more than two dogs at her premises without an exemption being granted until making application to do so in January 2020.
The owner's failure to comply with the Dog Act, especially her registration obligation, in the context of her 17 years of dog ownership, is a significant concern over whether there can be any confidence in her continued compliance with her legal duties as a dog owner.
I am prepared to accept in this instance that her failure to comply with her registration obligation was an isolated event. Whilst ignorance of the law is not an excuse in respect of the commission of an offence, it is nonetheless a relevant consideration in assessing whether confidence can be maintained in the owner that she will comply with her legal duties. Ultimately, I accept that the owner's chronic fatigue syndrome likely played a part in her delay in applying for the exemption and on balance her failure to comply with the Dog Act has not outweighed all the other factors supporting the exemption application.
Impact of additional dogs on amenity of area
As to the impact of additional dogs on the amenity of the area, whilst this is not an express consideration under Policy 5.2.5, a draft advice note for approvals as proposed in Policy 5.2.5 reveal the intention of the Shire to reserve the right to revoke the approval should any complaints and/or nuisance results from the keeping of the additional dogs on the premises.
It is thus inherent in the terms of Policy 5.2.5 that the impact on the amenity of the area as a whole is a relevant consideration to the Shire.
For reasons set out in [120] - [121], the owner's new cleaning regime and tools should resolve the odour issues with animal excrement.
As to dog barking, I share the owner's reservations about the significance of the issue given that the complainants have not been asked to keep a barking diary, which Mr Burch concedes is part of the normal procedure of investigating barking complaints. Whilst barking is raised as a comment in Mr McSharer's survey of three of the four neighbours, which I accept is an accurate record of their comments, no further particulars are given as to the frequency or severity of the barking. Further, no directions or warnings have ever been issued by the Shire in respect of noise nuisance.
Ultimately, I am not satisfied that there will be detrimental impact on the amenity of the area by approving the exemption application.
Conclusion
For reasons set out above, I find that the owner's exemption application to keep at or in the premises her three dogs should be approved.
I will impose a condition that the exemption applies only to the dogs currently owned by the owner.
I will hear from the parties as to whether any further conditions should be imposed.
Otherwise, the review application will be allowed, and the Shire's decision to refuse the development application will be dismissed.
Orders
The Tribunal makes the following orders:
(1)The application for review of the Respondent's decision dated 5 March 2020, to refuse the Applicant's application is allowed.
(2)The decision of the Respondent dated 5 March 2020 to refuse the Applicant's application is dismissed and substituted with the following:
(a)The Applicant's application for exemption to keep at or in 37 Collier Street, Manjimup more than two dogs is approved, subject to the following condition that it applies only to the dogs named in the Applicant's application submitted on 31 January 2020.
(3)The Tribunal will determine whether to impose any further conditions on the approval referred to at order (2) following submissions of the parties, to be exchanged between the parties and filed with the Tribunal as follows:
(a)By 20 May 2021, the Respondent is to provide the Tribunal with a set of all the conditions which it contends should be imposed on the approval (draft conditions);
(b)By 10 June 2021, the Applicant is to provide the Tribunal with a document which identifies any of the draft conditions to which she objects (and the reasons for objection), and set out any alternative or additional conditions which she contends should be imposed on the approval.
(4)Unless otherwise ordered, the Tribunal will determine the question of whether to impose any further conditions on the approval on the documents, pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
28 APRIL 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: DOG ACT 1976 (WA)
CITATION: KEEGAN and SHIRE OF MANJIMUP [2021] WASAT 57 (S)
MEMBER: MS KY LOH, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 2 AUGUST 2021
FILE NO/S: CC 469 of 2020
BETWEEN: ROCHELLE KRISTY MARIE KEEGAN
Applicant
AND
SHIRE OF MANJIMUP
Respondent
Catchwords:
Dog Act - Conditions of approval of exemption to keep more than two dogs - Nuisance
Legislation:
Cat Act 2011 (WA)
Dog Act 1976 (WA), s 26(4), s 38(1), s 38(3)
Result:
Further conditions imposed
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Gnech Building Co and Town of Claremont [2018] WASAT 77
Keegan and Shire of Manjimup [2021] WASAT 57
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Ms Keegan (owner) unsuccessfully applied to the Shire of Manjimup for an exemption to keep her three Cavalier King Charles Spaniel dogs at her home.
On 27 April 2021 I dismissed the Shire's refusal to grant the exemption, and approved the owner's exemption application subject to the condition that the exemption applies only to the dogs named in the owner's exemption application (being Bonnie, Ruby and Kimba): Keegan and Shire of Manjimup [2021] WASAT 57 (Keegan).
In short, I was satisfied that that the exemption application is supported by the Shire's Policy 5.2.5 'Keeping of Additional Dogs/Cats', and the other grounds for objection had either not been established by the Shire or did not otherwise justify the refusal of the application.
In allowing the review application, I substituted the Shire's refusal decision with the following order:
The Applicant's application for exemption to keep at or in 37 Collier Street, Manjimup more than two dogs is approved, subject to the following condition that it applies only to the dogs named in the Applicant's application submitted on 31 January 2020.
Having received further submissions from the parties, I will impose additional conditions of approval that the owner shall keep up to date at all times registration and registration details relating to each dog, and that the dogs shall not be a nuisance in respect of which an order is issued under s 38(3) of the Dog Act 1976 (WA) (Dog Act).
Shire's proposed conditions
On 6 May 2021, the council for the Shire moved a resolution to request the following additional conditions and associated advice notes be added to my approval of the exemption application:
a)This approval shall cease to have effect in the event that one of the three approved dogs ceases to reside with the owner (including in the event of death) in which case the maximum number of dogs shall revert to two;
b)This approval is not transferrable to another property;
c)The maximum number of dogs to be used for breeding purposes shall be two;
d)No more than three dogs over the age of three months shall be kept at the property at any one time;
e)The owner ensuring that the registration and registration details relating to each dog/cat are kept up to date at all times;
f)The animals hereby approved shall not create a nuisance as defined by the Dog Act 1976.
Advice to Applicant:
i)The applicant is advised that the Shire of Manjimup reserves the right to revoke this approval should any of the above conditions not be met, or any substantiated complaints and/or nuisance results from the keeping of the additional dogs/cats on the premises; and
ii)the applicant is advised that the purpose of condition No c) above is to ensure that the use of the land does not fall within the land use classification of Animal Establishment, which is prohibited in the Residential Zone under the provisions of the Local Planning Scheme No 4.
Consideration
Proposed condition a) is not necessary. The terms of my approval, as reflected in my order, make clear that the approval is personal to the dogs named in the owner's exemption application, namely, Bonnie, Ruby and Kimba. Should any of these dogs cease to be kept at the owner's premises at 37 Collier Street, there is no exemption afforded to any other dog.
For similar reasons, proposed condition b) is not necessary either. The terms of my approval make clear that the approval is given only in respect to the owner's current premises at 37 Collier Street. Further, it is in the nature of the limit imposed on the keeping of dogs under s 26(4) of the Dog Act that it relates to the particular premises for which the limit applies.
As to proposed condition c), this fails to recognise that Bonnie has now been sterilised (see Keegan at [62]), and so the maximum number of dogs to be used for breeding purposes is already at two. The Shire did not dispute or challenge the fact of Bonnie's sterilisation at the hearing when that evidence was given by the owner and is now precluded from challenging its veracity. Further, I found the owner to be an honest witness of fact. As the approval is personal to the owner's current dogs, there is no need to impose proposed condition c).
Proposed condition d) is otiose. The terms of my approval already limit the number of dogs that may be kept at 37 Collier Street to the three currently owned by the owner. The owner will have to apply for another exemption if she wants to keep any other dog in or at 37 Collier Street while she is keeping her dogs there, so as to avoid a breach of the prohibition under s 26(4) of the Dog Act.
As to proposed condition e), the owner agrees to its imposition. Given the owner's previous failure to comply with her registration obligation (see Keegan at [128]), I consider it reasonable to require her to maintain registration, and accurate registration details, of her dogs. I will make this requirement a further condition of my approval granted on 27 April 2021.
To the extent that the Shire has included in this proposed condition maintenance of any cat registration, I have not heard any evidence about the owner's compliance with the Cat Act 2011 (WA) (Cat Act), and so it would not be appropriate to impose conditions relating to the owner's registration obligations under the Cat Act with this exemption approval under the Dog Act.
As to proposed condition f), the owner has indicated she does not have a problem with this condition 'as long as the nuisance is proven with more than verbal complaints of said nuisance'.
Under s 38(3) of the Dog Act, an authorised person, who is satisfied that a dog is a 'nuisance' as alleged in a complaint, can issue an order relevantly requiring the owner to prevent the alleged behaviour by a specified time.
Section 38(1) of the Dog Act defines a dog as being a 'nuisance' if the dog:
(a)makes a noise, by barking or otherwise, that:
(i)persistently occurs or continues to such a degree or extent that it unreasonably interferes with the peace, comfort or convenience of any person in any place (s 38(1)(a)); or
(ii)exceeds a prescribed noise level measured by a prescribed method over a prescribed period of time, or a prescribed number of times of occurrence during or over a prescribed period of time (s 38(1)(c)); or
(b)is shown to be allowed to behave consistently in a manner contrary to the general interest of the community (s 38(1)(b)).
Given the barking concerns raised in the survey of neighbours (see Keegan at [38] and [40]), albeit none had escalated to require the maintenance of a barking diary (see Keegan at [134]), I consider it reasonable to impose a condition that her dogs shall not be a nuisance, upon satisfaction by an authorised person of that nuisance. Given that s 38(3) of the Dog Act already requires that an authorised person be so satisfied before being able to issue an order, I will tie this condition to the issue of an order under s 38(3) of the Dog Act. Accordingly, I will impose a further condition that the dogs shall not be a nuisance as defined in s 38(1) of the Dog Act, in respect of which an order is issued under s 38(3) of the Dog Act.
Finally, advice notes do not have the status of conditions (see, in the context of planning approvals, Gnech Building Co and Town of Claremont [2018] WASAT 77 at [127]). As there are only three conditions of approval which I consider are clear in their scope and meaning, I decline to include advice note (i) as proposed by the Shire. Further, advice note (ii) is not relevant given my rejection of the need to impose proposed condition c).
Orders
The Tribunal makes the following orders:
1.Order 2 of the orders made by the Tribunal on 27 April 2021 be amended as follows:
(a)The applicant's application for exemption to keep at or in 37 Collier Street, Manjimup more than two dogs is approved, subject to the following conditions:
(i)This approval applies only to the dogs named in the applicant's application dated 31 January 2020.
(ii)The applicant shall ensure that the registration and registration details relating to each dog are kept up to date at all times.
(iii)The dogs shall not be a nuisance as defined in s 38(1) of the Dog Act 1976 (WA) in respect of which an order is issued under s 38(3) of the Dog Act 1976 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
2 AUGUST 2021
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