KHALIL and CITY OF NEDLANDS - [2021] WASAT 143

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: DOG ACT 1976 (WA)
CITATION:   KHALIL and CITY OF NEDLANDS [2021] WASAT 143
MEMBER:   MS KY LOH, MEMBER
HEARD:   11 AND 12 AUGUST 2021
DELIVERED          :   5 NOVEMBER 2021
FILE NO/S:   CC 966 of 2020
BETWEEN:   MICHAEL KHALIL
First Applicant
MARY HAKEEM
Second Applicant
AND
CITY OF NEDLANDS
Respondent

Catchwords:

Dog Act 1976 (WA) - Application for exemption to keep more than two dogs - Overwhelming concerns by neighbours about barking, wandering and level of care to dogs - Compassionate grounds

Legislation:

Animal Welfare Act 2002 (WA), s 33(1), Pt 3
Dog Act 1976 (WA), s 7(1)(a), s 7(3)(a), s 20(1)(c), s 26(1), s 26(2), s 26(2)(a), s 26(2)(b), s 26(2)(c), s 26(3), s 26(4), s 26(4)(a), s 26(5)(b), s 27, s 27(1)
State Administrative Tribunal Act 2004 (WA), s 17, s 27(1), s 27(2), s 27(3)

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Applicant	:	In Person
Second Applicant	:	No appearance
Respondent	:	Mr DP Gillett

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	McLeods

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

Keegan and Shire of Manjimup [2021] WASAT 57
Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Dr Michael Khalil and Dr Mary Hakeem own three Maltese Shih Tzu dogs (Mia, Rico and Flash) with whom they live in their home in Mount Claremont along with their three young children.
In December 2019, following a complaint about the dogs, the City of Nedlands asked the owners to register the dogs with the City.
The City also advised the owners that they will need to apply for an exemption to keep more than two dogs at their home, which they lodged in April 2020.
Of the written submissions received from 10 residents of neighbouring properties to the exemption application, nine objected to or raised concerns about the application for reasons including excessive barking, escape from the owners' home and concerns for the welfare of the dogs.
Based on the 'overwhelming and consistent' concerns raised in the objections, the City refused the exemption application.
The owners deny the allegations that the dogs have caused any nuisance nor that their welfare is in jeopardy. They seek the exemption for the sake of one of the members in their family, whose mental health may be affected by the removal of one of the dogs.
Whilst acknowledging the owners' personal reasons for the exemption application, I have considerable doubt about the family's ability to properly care for three dogs such as to affirm the City's decision to refuse the exemption application.

Issue for determination

The primary issue for determination is whether the application for exemption from the limit imposed on the number of dogs that may be kept at premises under the City's local law should be granted.
In considering the primary issue, the following secondary issues arise:
a)Does the City's policy support approval of the application?
b)Are there any other relevant considerations in assessing the application?
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.

Factual background

The following factual background is not in dispute between the parties.
The owners' home on 1 Cochram Court, Mount Claremont, is in the district of the City of Nedlands. Pursuant to the City of Nedlands Dogs Local Law 2012 (Local Law), the limit on the number of dogs that can be kept on any premises within the City's district is two and the pups of those dogs.
The owners moved to their home in Mount Claremont in around 2017 with one dog (Rico). They then had two other dogs, Mia (which they bought sometime around August-October 2018) and Flash (born in May 2019, an offspring of Mia and Rico).
The dogs are not sterilised.
Dr Khalil submitted the application to keep three dogs with the City on or about 14 April 2020.
On 10 August 2020, the City refused Dr Khalil's exemption application.

The City's case

The City contends that the exemption application should be refused, based primarily on the evidence of neighbouring residents of excessive barking by the dogs.
The residents also raise concerns about the welfare of the dogs.
Based on the two litters of pups mothered by Mia, and as the dogs remain unsterilised, the City invites the inference that the owners will continue to use the dogs for breeding purposes.
The City called the following witnesses at the hearing:
a)Ms Jessica Bruce - the Coordinator Ranger employed by the City;
b)Ms Karen Nugawela - the resident of 3 Cockram Court, Mount Claremont, since July 2018; and
c)Ms Maree Collette Nathan - the resident of 6 Cockram Court, Mount Claremont since 1994.

Evidence – Ms Bruce

Ms Bruce has been a ranger for more than seven years and has previously managed pounds. She holds qualifications from Central Regional TAFE for local government regulatory services that includes training on the control, management and welfare of dogs. She is also a member of the WA Rangers Association.
Ms Bruce states that the City's criteria for assessing an application for exemption is contained in the City's application form.
The application form states that applications to keep more than two dogs will only be approved in circumstances where:
a)all dog registration requirements are satisfied;
b)the dogs are not used for breeding purposes;
c)the dogs are not of a restricted breed or declared a dangerous dog;
d)all abutting neighbours have provided written consent or have no substantiated reasons for refusal;
e)payment of the prescribed fee has been received by the City; and
f)there is no history or current incidence of dog nuisance, wandering or control that is likely to impact on the surrounding community.

Nuisance (barking, escape), welfare of the dogs

In assessing any exemption application, Ms Bruce states that she will also consider whether the dogs have been well trained, have been walked, and whether they are causing a nuisance. However, she does not consider the factors of size of the dogs and the size of the residential block, on their own, as necessarily determinative as it will depend on the individual circumstances of the case.
Ms Bruce confirms that the City records indicate only one incident of wandering and impounding of one of the dogs a few years ago.
There is a Running Sheet attached to Ms Bruce's statement, which contains entries relating to the City's investigation from December 2019 to April 2020 into a neighbour's complaint of '3 dogs and a puppy barking a lot'.
Ms Nugewela states that she is possibly the original complainant as she called the City anonymously about that time.
The entries indicate that the rangers followed up with the owners about the dog registrations and the exemption application every month. The Running Sheet also records Ms Nugewela calling at least once a month to advise that there were still three dogs at the premises.
When approached by the ranger, Dr Khalil was initially going to send through registration details of some of his dogs, but by 6 January 2020 he had 'paid registration fees'. Dr Khalil had also made enquiries about dog breeding.
Dr Hakeem had told the ranger on 25 February 2020 that Rico was for sale on Gumtree, although Dr Khalil later told the ranger on 3 March 2020 that they were trying to rehome the dog with friends first before trying to advertise. Dr Khalil advised that it was his son's dog, however, so he might consider an exemption application.
By 8 March 2020, Dr Khalil called the City to enquire about an exemption application.
When the ranger hand-delivered the caution notice to Dr Khalil for Rico to be registered on 2 April 2020, he also asked Dr Khalil to submit the exemption application as soon as possible.
After the exemption application was lodged, the City wrote to surrounding neighbours in May and June 2020 seeking comments on, and asking whether they supported, the application. The City received responses from 10 of the neighbours (with Ms Nugewela providing two written responses), which are summarised in the table below:

Address	Support Appl?	Comments
Address	Support Appl?	Barking	Escape	Groom	Walk	Other
2 Cochram Ct	N	Dogs escaped when family not home: at night (once), in the day through open window (several times)	Only seen a dog being walked twice (without a lead)	Family not coping well Family leaves dogs in backyard when away for a few days
3 Cochram Ct	N	History of excessive and persistent barking	Usually scruffy and matted-looking	Family unable to maintain 3 dogs Property neglected Dog walked through pool fence, nearly drowned Dogs left outside for 2-3 days when family away Female dog excessively bred
4 Cochram Ct	N	Barking (as struggled to walk dogs)	Struggled to walk dogs	Family cannot manage level of care that 3 dogs need
5 Cochram Ct	N	Dogs constantly barking	Unpleasant smell from house Yard is in disrepair
6 Cochram Ct	N	Excessive barking on regular occasions both day and night	Never seen dogs being groomed	Never seen dogs being walked or exercised
8 Cochram Ct	N	Are back neighbours to residents who have 3 dogs who bark consistently: do not want any more in neighbourhood
1 St Johns Wood Bvd	N	Dog escaped several times; ran down St Johns Wood Bvd onto Montgomery Ave
4 St Johns Wood Bvd	-	Dogs escaped on multiple occasions, had to be rescued by resident/other neighbours	Dirty with matted fur; seen dog washer recently	Dogs don't cause any issues, but owners need to be more responsible
5 St Johns Wood Bvd *	N*	Barking seems to have increased recently *
3 Townsend Dle	Y

*Resident changed view at hearing to support application.

In refusing the owners' exemption application, the City considered that the objections and comments raised serious concerns about whether the owners could demonstrate good responsible dog ownership, whether the dogs would impact on the surrounding community and whether there had been contraventions of the Dog Act.
In his response to the City, Dr Khalil refuted Ms Nugewela's objections and alleged that she was motivated by the owners' requests for her windows looking into their house to be blocked or shaded.
Dr Khalil also indicated that the only and main reason that they have three dogs is due to the risk of the impact on the mental health of one of his family members.
Ms Bruce acknowledges that the City has taken into account Dr Khalil's concern for his family member in its decision. However, she considers that the number of objections to this application is 'unusually high', and that the concerns raised by his neighbours are 'common' and 'overwhelming and consistent' such that the City is satisfied that the dogs had caused, and are likely to cause, a nuisance by barking, and that they cannot be kept on the owners' property without affecting adjoining property owners.
The City is also satisfied that the owners are breeding the dogs, which is another element of the City's policy.

Dog registrations

Ms Bruce states that Mia, Rico and Flash were first registered with the City on 6 January 2020, 2 April 2020 and 7 December 2020 respectively.
She attaches screenshots (undated) of computer enquiries into the dogs on the City's animal registration database.
The registration date for Flash is recorded as 7 December 2020; however, the City's refusal letter of 10 August 2020 states that two dogs had been registered with the City by January 2020, and the Running Sheet documents a caution being issued on 2 April 2020 to Dr Khalil for (only) Rico to be registered.
On the basis that the Running Sheet recorded no dog registrations for the owners' residence as at the first complaint in December 2019, but by January 2020 two dogs had been registered, I find that, consistent with Dr Khalil's evidence, Flash's registration in December 2020 was a re-registration, and that Flash was first registered in January 2020.
Finally, whilst the database screenshot for Rico does not contain his registration date, it appears consistent with the date of the caution, and Ms Bruce's evidence, that Rico was registered on or around 2 April 2020.

Evidence – Ms Nugewela

Ms Nugewela's oral testimony as to her objections to the exemption application is roughly consistent with her written comments to the City.
She states that she has not worked whilst she has lived at her leased property, although she is in and out of her house on any given day.
She has owned dogs in the past.
There are two bedrooms and two studies on the side of her house facing the owners' house, and there are windows facing the owners' house from the second storey of her two storey house.
Despite Dr Khalil's challenges, I accept that Ms Nugewela has a clear view into the owners' back patio area and pool area, as clearly reflected in her tendered photographs taken from her window on the top level.
As to the barking, she feels it had been noisy with two dogs (indeed, she wrote a letter to the owners in February 2019 when they barked from 3.00 to 4.30 am in the morning); with three dogs, it has become worse, particularly in summer.
The dogs have barked loudly and right at the fence bordering both houses, and at different times of the night on some nights (anytime from 9 pm to 12 am).
She has seen the dogs sleeping outside the owners' house near the backdoor.

Evidence – Ms Nathan

Ms Nathan is a retired speech pathologist. She is home with her husband about 80% to 90% of the time, and both have seen a lot of what happens on the street from the front balcony of her two storey house.
She has a direct line of sight to the owners' property from her front garden.
She has owned dogs in the past.
She has observed the dogs barking continuously and over a sustained period, and provides as an example an incident the week before the hearing where the dogs barked continuously for 45 minutes in the morning at the back of the property while there were visitors.
Whilst she accepts dogs will bark, she is concerned that the dogs bark louder and for a longer period than she considers is acceptable.
She has also seen the dogs escape on two occasions. On one of those occasions, one of the dogs escaped when the tree lopper left the side gate open, and she went to catch it and return it to Dr Khalil. At the time of picking up the dog, she observed it had matted hair and smelled a bit 'pongy'.
She has never seen the dogs being walked on a lead or in the front yard.
When challenged in cross-examination as to how she is able to identify the dogs from the barking, she states that she is able to rely on her training to identify the dogs sufficiently by the pitch of their barking.
Whilst she works with human voices, she is attuned to pitch levels which extends to non-human pitches.
She is aware that there are dogs next door and on 4 St John Wood Boulevard, but these dogs have different barks and she can distinguish the dogs from these other dogs.
She qualifies in cross-examination that while she has not seen the dogs being groomed at the front of the owners' house (other than on one occasion), she accepts grooming may occur at other parts of the house outside her line of sight.

The owners' case

Dr Khalil gave evidence at the hearing, and called the following witnesses:
a)Dr Sandeep Sharma - the resident of 15 years at 5 St Johns Wood Boulevard;
b)Ms Engy Keryakos - the owners' friend who has looked after dogs;
c)Ms Sasha Radmilovich - Dr Khalil's friend and patient; and
d)Ms Haidy Wassily - the owners' friend who has looked after the dogs.
Dr Hakeem did not give evidence at the hearing.

The owners' case, Dr Khalil's evidence

Dr Khalil states that as immigrants to Australia, the owners do not have any other family in Australia, and treat the dogs as part of the family.
The applicants have three children who are, at the time of the hearing, aged 9½ years-old, 6½ years-old and 10 months old.
Dr Khalil works at his own medical centre with five doctors, and his working hours are:
a)before the impact of COVID-19: 9 am to 4 pm (four of the weekdays), 1 pm to 7 pm (one of the weekdays) and every third Saturday; and
b)after the impact of COVID-19: 9 am to 2 pm, then consult from home after pick-up of kids at 2.45 pm (every weekday).
The dogs have had two litters: two pups were born from the first litter in May 2019 (Flash survived, but the other pup did not), and four pups were born from the second litter in mid June 2020 (they were all given away).

Nuisance - barking, escape

Dr Khalil denies that there has been more than one incident of escaping dogs. That incident occurred in 2017 when one of the dogs ran from his mother-in-law (who was hemiplegic) and Dr Hakeem (who had broken her spine) and was impounded by the City.
Dr Khalil denies that the dogs bark excessively, and that they only bark due to strangers or cats. He states that the dogs only bark for five to 10 seconds at a time unless tradespersons come inside the house.
Dr Khalil contends that the complaints about excessive barking are a result of barking by dogs in other neighbouring residences. In particular, there are two small dogs across the road from his house.
Whilst he concedes in cross-examination that the dogs could have barked whilst he was out of the house, he states that his wife would have told him.
He is unwilling to accept that the dogs could have escaped on other occasions whilst he was absent from the house, stating that 'anyone can say anything' and that if he was not there at the time, he could not confirm that it had occurred.
In any event, Dr Khalil contends that I should discount the evidence of the other objecting neighbours on the basis that they did not consider the objections to be serious enough to appear at the hearing.
He also states that prior to Ms Nugewela moving into 3 Cochram Court in July 2018, the previous tenant did not complain about the dogs (although he accepts that he only had one dog at the time the previous tenant was living there).

Welfare of the dogs

Dr Khalil disputes that the dogs are not groomed, and states that he follows a dog groomer's recommendation to cut the dogs' hair every two to three months. The family brushes the dogs' hair once or twice a week. He states that dogs with long hair can have short matted hair.
Dr Khalil states that the reason that neighbours have not seen the dogs being walked is that he drives the dogs out to other areas for walks or has a friend take the dogs out. He does not have the dogs in the front yard because the traffic on the road is unsafe for the dogs.
Dr Khalil denies that the dogs sleep on the patio, and states that they sleep in the second bathroom. The dogs may be let out at nighttime if they scratch at the door to be let out for toileting.
Dr Khalil disputes that the dogs are neglected, and says that the family plays with the dogs, especially on the trampoline in their backyard. He tendered photographs of the family with the dogs, including of his children playing on the trampoline with two of the dogs.
He stated that when the RSPCA visited their house last year, they raised no concerns about the family's care of the dogs.

Dogs registrations

Dr Khalil concedes that the owners are responsible for ensuring the dogs are registered. He had thought Mia was registered for three years with the Town of Victoria Park. He did not register Flash as he was trying to buy time before selling Flash.

In cross-examination, he denies Rico was unregistered from 1 November to 6 December 2020 as he had understood that once registered, it operated retrospectively to backdate the registration to 31 October 2020.
Dr Khalil accepts however that they were probably busy with the birth of their youngest child on 7 October 2020 which may have delayed registration of the dogs.

Intention to breed

Dr Khalil has not addressed whether there is an intention to sterilise the dogs.
Dr Khalil is somewhat equivocal on the issue of breeding the dogs. Firstly, he denies that he is breeding dogs, although he accepts that Mia has had two litters. Secondly, whilst at pains to deny any financial need to breed the dogs (given that he owns his own medical centre), his plans to sell Flash was the reason for being late to register Flash with the City.

Relevant factors in determining the application

Given Dr Khalil's request at the hearing for privacy in relation to the details of his family member's mental health issues, I have not disclosed the specific medical concerns nor the identity of the particular family member in these reasons. Such evidence was given at the hearing at which the City's counsel was present and had the opportunity to make submissions. I will simply reflect Dr Khalil's position that he is concerned that there will be mental health consequences for his family member should one of the dogs be removed.
He contends that the size of his property and the size of the dogs should be relevant to his exemption application.
Dr Khalil also questions the City's inconsistent approach by not progressing his complaint about cats coming over his fence and causing the dogs to bark, whilst other residents are entitled to complain about the dogs barking.

Owners' proposals – dog collars, blocked access to fence

Despite disputing that the dogs bark excessively, Dr Khalil is prepared to put dog collars on the dogs. He is also prepared to reduce the impact of the barking on Ms Nugewela by blocking the dogs from accessing her fence.

Evidence - Dr Sharma

Dr Sharma holds a PhD and consults in the field of carbon.
When asked whether the dogs have caused any nuisance, Dr Sharma states that he has heard barking, but he does not characterise it as nuisance.
He opposed the owners' exemption application in his written response to the City as he thought he was being asked whether additional dogs should be allowed on the owners' property and considered that the presence of more dogs would be noisier. He has since spoken to a City officer to advise that whilst the dogs bark, they do not bark to the point of nuisance.
In cross-examination, he accepts that his house is at a lower level than the owners' house and that his bedroom does not border the owners' property, although he can hear the dogs in his backyard which borders the owners' property.

Evidence – Ms Keryakos

Ms Keryakos used to look after the dogs on the weekend by taking the dogs to her house on Saturday morning and returning them that night. She has not looked after the dogs overnight or at the owners' property.
Ms Keryakos is a little inconsistent in her evidence. For example, she states that the dogs' hair was well brushed when she picked them up, although she also brushed their fur when she looked after them.
More importantly, she states during cross-examination that when she goes to the owners' house, the dogs are in the backyard, and that the dogs sleep outside. During re-examination, however, she states that she does not come at night when the dogs are asleep.
I find Ms Keryakos' evidence of limited assistance as to the dogs' behaviour at the owners' property, and, save for her evidence on the dogs' grooming, does not throw any light on the level of care which the owners provide to the dogs at their house. Further, I find her testimony on the dogs' grooming somewhat contradictory and inconsistent, and so do not rely on it in making my determination.

Evidence - Ms Radmilovich

Ms Radmilovich states that she has not been to the owners' property or seen the dogs, and can only speak to her knowledge of Dr Khalil's adoption of a cat. Her evidence does not assist in the determination of the relevant issues in this application.

Evidence - Ms Wassily

Ms Wassily states that Dr Khalil is a good friend from church. She has looked after Rico at her house about four times, and on one occasion she looked after Rico and Mia at her house over a long weekend.
She observed on those occasions that the dogs' hair, when long, was not matted but was well brushed.
Save for her observations on the dogs' grooming, as with Ms Keryakos' evidence, I find Ms Wassily's evidence of limited utility as to the dogs' behaviour at the owners' property and the level of care which the owners provide to the dogs at their house.

Legislative framework

Tribunal jurisdiction

The owners seek a review under s 26(5)(b) of the Dog Act of the City's decision to refuse to grant an exemption from the limit on the number of dogs that can be kept in or at their 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 City 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 purpose '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 s 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, relevantly:
a)a limit can only be set at between two and six dogs inclusive (s 26(2)(a));
b)the law cannot prevent the keeping in or at premises of one or two dogs or the pups of either of those dogs (s 26(2)(b)); and
c)no limit can be set for dogs kept at premises that are licensed 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.

Dogs Local Law

Clause 3.2(2) of the 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.

Animal Welfare Act

The long title to the Animal Welfare Act 2002 (WA) (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 Pt 3 of the Animal Welfare Act.
Nominated members of the RSPCA staff can be appointed as general inspectors: s 33(1) of the Animal Welfare Act.

Primary issue - should exemption application be granted?

Secondary issue 1 - Is the application supported by the City's policy considerations?

As the legislature has empowered the City to set the limit on the number of dogs that a person may keep in or at his or her premises, the owner must demonstrate some circumstances and grounds for supporting the application.
In the absence of constraints in s 26(3) of the Dog Act on how the City is to determine exemption applications, it is appropriate for the City to develop a policy to guide its decision-making, as set out in the exemption application forms. Further, the City 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].

Registration requirements

As at the date of the exemption application, the owners satisfied all requirements to register the dogs, although it required not insignificant effort by the City's ranger to ensure Rico was registered, culminating in the issue of a notice of caution.

Intention to breed

I have found in Keegan and Shire of Manjimup [2021] WASAT 57 at [115] that there is an implied licence to breed up to two dogs inherent in the terms of s 26(2)(b) of the Dog Act. As such, any local law which prevents, either directly or indirectly, the keeping of the pups of either of those two dogs must be read down.
In my view, the relevant question in this case is not whether the owners intend to breed the dogs, but whether they have the capacity to maintain the welfare of the dogs should they choose to breed the dogs.
For the reasons below, I find that the owners are struggling to care for the dogs. As such, the equivocal evidence of Dr Khalil about whether he intends to allow the dogs to mate, and the fact that the dogs remain unsterilised, gives me no confidence that further litters will not eventuate, which will add further pressure on the family to care for the dogs.
As an aside, there is a conflict in the evidence of Ms Nugewela and Dr Khalil about whether there were three litters, or two litters mothered by Mia. For reasons set out above, the fact of whether Mia was bred twice or thrice is not the relevant issue and is not an issue necessary for me to resolve. However I hold reservations about the reliability of Ms Nugewela's evidence as set out later in [127]-[130] such that, had it been necessary to resolve the issue, I would have preferred Dr Khalil's evidence that there were two litters.

Nuisance - barking, wandering

For reasons set out below, I am satisfied that there has been a history of, and current incidents of, nuisance and wandering by the dogs such as to impact on the surrounding community.
As to Dr Khalil's objection to the written responses of residents who did not appear at the hearing, I accept that the weight to be given to these written responses will reflect that such responses have not borne the scrutiny of examination at a hearing.
Nevertheless, there is a consistent theme emerging from those written responses of a family struggling to care for three dogs, which may well be a contributing factor to their observations of excessive barking, lack of grooming and escaping incidents.
As to Ms Nugewela's evidence, I find that parts of her testimony and written complaints tend towards sensationalism, in particular, her allegations that Mia and Flash may have mated despite not having observed this. I also find that her persistent follow-ups with the City on the exemption application reveal her personal interest in the outcome of the application. This is perhaps unsurprising, given she is more directly affected by the barking due to the proximity of her residence, however, this reflects a vested interest which affects her reliability as a witness.
Based on my above observations, I have treated Ms Nugewela's evidence with caution, especially where there is no other evidence which corroborates her evidence.
Ms Nathan, on the other hand, impresses me as an honest and truthful witness, who readily conceded matters that were outside her direct knowledge or observations.
I accept her evidence that the dogs bark loudly and for sustained periods such as to constitute excessive barking. I find, based on her previous expertise as a speech therapist, that the subtle nuances between the pitch of different dogs are discernible to her, such that she is able to identify the dogs from their barking as distinct from that of other dogs in the neighbourhood.
I also accept that the dogs have escaped on at least two occasions, based on the evidence of Ms Nathan, and it is likely that they have escaped on other occasions, based on the written response of some of the other residents. Despite Dr Khalil's lack of concession on this point, I find that he is simply not in a position to exclude the possibility of the dog escapes as he is not always with the dogs.
On the whole, given the multiple, specific and consistent concerns raised by other residents about barking and escaping, which is supported by Ms Nathan's evidence, I am satisfied that the history of excessive barking by the dogs and their multiple escapes have caused a nuisance, and also points to a family which is struggling to control their dogs.
With Dr Khalil's blanket refusal to accept the multiple and consistent concerns of nuisance raised by his neighbours, there are likely going to be continued incidents of nuisance.
As such, under the City's policy, despite the registration requirement being met, my finding of the historical and current incidents of nuisance does not favour, on balance, the grant of the exemption application.

Secondary issue 2 - Are there any other relevant considerations in assessing the application?

Compassionate ground - mental health concerns

I have taken into account the specific medical evidence in support of Dr Khalil's submissions in arriving at my decision.
Whilst the potential impact on the mental health of Dr Khalil's family member is a relevant consideration to my decision, I am mindful that there are other events that may result in the loss of one or more of the dogs (for example, through natural death), and in a sense, the grant of this application defers, but does not prevent, the eventual loss of the dogs.
Dr Khalil's medical evidence does not address what the long-term effects of the mental health issues are, nor what treatment or strategies are being employed to protect his family member from the eventual loss of the dogs.
Any weight I give to this factor must be tempered by the impermanent nature of any favourable decision in addressing the longterm mental health of Dr Khalil's family member.
Ultimately, the legislature has entrusted the local government with the responsibility for determining whether, and in what circumstance, an exemption from the limit on keeping dogs should be granted. Notwithstanding the mental health concerns, I cannot overlook the owners' failure to satisfy an essential element for approval under the City's policy - that being the historical and current incidents of nuisance.
Further, I am not satisfied that, even if I gave primacy to the compassionate reason for granting the owners' application, it could be a longterm solution to these mental health concerns.
It is a regrettable consequence of a delayed application that, had the City's approval been sought earlier, the attachment to Flash, and therefore the impact to Dr Khalil's family member, might have been mitigated in some part.

Lack of any action taken by the RSPCA, welfare concerns

I accept that, in the absence of any action taken by the RSPCA during its visit to the owners' property (which I take to be a visit by an RSPCA inspector), it can readily be inferred that the RSPCA inspector was satisfied that there were no breaches of the Animal Welfare Act.
Whilst there were other concerns raised by his neighbours about the welfare of the dogs through their poor state of grooming and lack of exercise, it is not clear to me whether the observed state of grooming are isolated events, and whether the family has decided to walk the dogs outside of their house.
In the end, it is not necessary for me to make any findings in this regard, as I find more compelling, as indicia of the family's capacity to care for their dogs, the family's inability to control and prevent the dogs from nuisance behaviour and escaping as referred to in [134] above.

Size of property and the dogs

In my view, the size of the owners' property and the size of the dogs are relevant factors to the extent that they address issues of nuisance and impact to the community.
In this case, notwithstanding Dr Khalil's contentions of the relatively large size of the property and the relatively small size of the dogs, there has still been a demonstrated history of nuisance due to barking and escaping, and thus fails to support the grant of the exemption application.

Cat policy

Notwithstanding Dr Khalil's allegation of inaction by the City on his complaints of cats coming onto his property, it does not appear to me that any specific information about the identity of the cats nor their owners has been provided to the City to assist in the proper investigation of his complaints.
I do not consider that the City has been unreasonable in its response, and therefore do not attach any weight to this complaint in my determination.

Owners' proposals - dog collars, blocked access to fence

The City challenges the bona fides of these proposals given the late stage at which they have been proposed. Further, the owners' failure to carry out any of these proposals prevents an assessment of the effectiveness of these actions in ameliorating the concerns raised by the neighbours.
In any event, the City challenges the effectiveness of the barking collars. Further, the proposed blocking of access to Ms Nugewela's fence does not block other pathways for the barking to reach Ms Nugewela's house, nor those of the other residents.
There is some strength in the City's contentions. While Dr Khalil has indicated a preparedness to use dog collars, there is no evidence of the effectiveness of dog collars before the Tribunal. Blocking access to the dogs to Ms Nugewela's boundary fence does not prevent the impact of barking on others (or even on Ms Nugewela, albeit potentially at a lesser extent). Ultimately, these measures do not properly address the more pressing concern that the family is not able to adequately care for three dogs.

Conclusion

On balance, for reasons set out above, I find that the overwhelming and consistent evidence of nuisance of excessive barking and escape by the dogs does not support the owners' exemption application to keep at or in the premises three dogs.
I will affirm the City's decision to refuse the owners' exemption application and dismiss the owners' application.

Orders

The Tribunal makes the following orders:
1.The application for review of the respondent's decision dated 10 August 2020 to refuse the applicants' application is dismissed.
2.The decision of the respondent dated 10 August 2020 to refuse the applicants' application is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
5 NOVEMBER 2021