LIMNIOS and CITY OF STIRLING - [2010] WASAT 7

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: DOG ACT 1976 (WA)

CITATION: LIMNIOS and CITY OF STIRLING [2010] WASAT 7

MEMBER: DR B DE VILLIERS (MEMBER)

HEARD: 13 DECEMBER 2009 AND 19 JANUARY 2010

DELIVERED : 28 JANUARY 2010

FILE NO/S: CC 645 of 2009

BETWEEN: ATHANASIOS LIMNIOS
HELEN LIMNIOS
Applicants
AND
CITY OF STIRLING
Respondent

Catchwords:

Review of decision by local authority - Dog Act - Grounds for exemption to hold more than two dogs - Exercise of discretion Factors to consider when complaints about barking are considered Weighting of evidence - Expert evidence - Duty of expert to assist Tribunal to come to the correct and preferable decision

Legislation:

Dog Act 1976 (WA), s 26
State Administrative Tribunal Act 2004 (WA), s 18(1), s 27, s 29, s 29(5)

Result:

The application for review of the decision by the City of Stirling is unsuccessful and the decision of the City to refuse an exemption to keep more than two dogs is affirmed
The application is dismissed

Category: B

Representation:

Counsel:

Applicants: Mr A Prime
Respondent: Mr P Gillett

Solicitors:

Applicants: McCallum Donovan Sweeney
Respondent: McLeods

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

Corrigan and Shire of Northam [2009] WASAT 140
Robins and Shire of Harvey [2005] WASAT 28

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr and Mrs Limnios sought review of a decision of the City of Stirling to refuse to renew an exemption to allow them to keep more than two dogs on their residential lot. They had been granted exemptions previously to keep four dogs, but after repeated complaints had been received about barking and other noises, a further exemption was refused. The exemption had previously been renewed despite complaints of barking.
The City of Stirling refused to continue to grant an exemption, primarily on grounds that some of the neighbours had complained for a substantial period of time of ongoing barking, yelping and whining. Some neighbours had kept a diary, provided by the City of Stirling, to record the barking patterns. The City of Stirling had also undertaken interviews of neighbours and concluded that there was sufficient evidence of noise that could be attributed to the four dogs to merit the refusal to grant another exemption.
Mr and Ms Limnios admitted that there may have been some problems with barking, but they said that remedial steps had been taken with the assistance of an expert in dog behaviour, Dr Garth Jennens, and that the situation had improved. They further stated that two of the dogs are old, and breaking up the family could be disruptive to those that remain behind.
Several witnesses were called by the parties to give evidence. Not all neighbours were concerned about the dogs barking. Some said that they barely heard the dogs; others said there were many dogs in the area barking; and others said that the dogs were a nuisance and their barking was clearly distinguishable from those of other dogs.
Dr Jennens also gave evidence. Dr Jennens described the main complainant as 'obsessive' and, as a result, discounted much of the complaints by the complainant. He did not interview any other neighbours about their experiences with the dogs and he did not conduct any research of his own into the behaviour of the dogs.
The Tribunal found that there was sufficient evidence to conclude that the barking and noises made by the dogs had constituted an ongoing nuisance and that the steps taken by Mr and Mrs Limnios to manage the problem had not been adequate. The Tribunal accepted that although the situation had improved from time to time, it would then again get out of hand. The Tribunal did not accept the evidence of Dr Jennens that the dogs were not barking excessively. Dr Jennens had undertaken no independent research and it appeared as if his views were influenced by his categorisation of the main complainant as 'obsessive'. The evidence by neighbours living close to the premises, the schedules of barking and the long history of the complaints, combined to sway the Tribunal towards supporting the decision of the City of Stirling. It is generally accepted that barking, yelping and whining dogs can have a severe disruption of one's peace and quiet especially in early mornings and at night. It is not necessary for all the neighbours to agree that barking was disruptive or that they must be equally disturbed. Even if some neighbours found it a nuisance, and the Tribunal was satisfied that their concerns had merit and not a result of being oversensitive, it could affirm the decision.
The Tribunal was, therefore, of the view that the City of Stirling acted within their powers and with justification by refusing to grant an exemption to keep more than two dogs.
The decision by the City of Stirling was affirmed and Mr and Mrs Limnios were given a period of two months from the date of the orders to comply with the decision.

Issue

The issue is whether the decision by the City of Stirling (City) to revoke an exemption for the applicants to hold more than two dogs on their premises should be set aside and an exemption be given. The City decided, after ongoing complaints about barking, yelping and whining to revoke the exemption. In these reasons, the Tribunal uses 'barking' as a collective verb to describe all the sounds the dogs allegedly make.
The application for review was lodged on 8 May 2009. The first directions hearing took place on 21 May 2009 at which the matter was set down for a hearing. The hearing was later adjourned to 13 November 2009. The evidence did not conclude and the hearing was continued on 19 January 2010. The decision was reserved at the conclusion of the hearing.
Both parties made extensive written and oral submissions and several witnesses were called to give evidence, including an expert witness. The Tribunal took all of the submissions and evidence into account in coming to its decision.

Background

The key events leading to the application can be summarised as follows:
The dogs, the subjects of this application, are:
•toy poodle Beba, tag No B03540;
•toy poodle Spyro, tag No A03746;
•toy poodle Sotiri, tag No B03539; and
•toy poodle Mousitsa, tag No B03541.
The dogs are currently, respectively, 11, nine and eight years.
Mr and Mrs Limnios (applicants) applied to the City in 2002 for an exemption to keep more than two dogs at their residential premises. The request flowed from the decision of the applicants to keep two puppies of a litter of four. The exemption was granted on 26 August 2002. All the neighbours consented, save for Mr Crook. The exemption was subject to conditions, namely:
a)the approval was for one year;
b)the approval was limited to the existing one dog;
c)a written application for renewal would have to be made at the end of the 12 months; and
d)the third dog must be registered within seven days from the date of the approval.
The first complaint about the dogs' barking was received on 10 March 2003. In response to the complaint, the applicants approached Bark Busters to assist them in addressing the behaviour of the dogs. Mr Brian Heesom, of Bark Busters, wrote to the City on 12 May 2003 and said that the initial training had been concluded and that if any further problems arose, they would deal with it. Mr Heesom again wrote to the City on 28 October 2004 to state that the applicants had given a guarantee that the problem would abate. He also said that the amount of barking was estimated as 10 13 minutes over a six to eight hour period. He did not say whether this was per dog, or all the dogs barking together. Mr Heesom was not called to give evidence.
The situation improved, but further complaints were received in August 2004. An abatement notice was issued for the nuisance to cease within 14 days. On 15 January 2005, Mrs Limnios wrote to the City to explain what they had been doing to attenuate the behaviour of the dogs. She expressed her concern at the 'personal vendetta' that someone might have against them by lodging the complaints.
It appeared thereafter that the situation had been remedied, and on 4 February 2005 the City wrote to the applicants to say that it appeared that the problem had subsided and that they were encouraged to 'continue to train and manage the good behaviour' of the dogs.
Complaints of dog barking were however again received in July 2005. The City noted that the exemption to keep more than two dogs had in the meantime expired. The City conducted a survey of neighbouring properties and eight of 14 properties surveyed did not approve of the exemption being extended.
In November 2005, the City informed the applicants that the application for an exemption may be refused on grounds that 'the dog noise has either not been abated or improved to an acceptable standard'. The applicants replied by requesting that the City defer the decision to allow them to treat their dogs with prescriptive medicine that would calm them down. In their letter of 29 November 2005, they said they had appointed a new expert, Dr Garth Jennens, and that he needed additional time 'to conduct his own investigations into the matter'.
The City acceded to the request and informed the applicants that a further neighbourhood survey would be conducted in January 2006. In its letter dated 2 December 2005, the City noted that on the basis of representation by Dr Jennens, 'further time will be allowed for treatment' of the dogs.
The City wrote to the applicants in February 2006 and March 2006 to enquire what progress is being made with the treatment of the dogs. The City noted, in a letter dated 10 February 2006, that the survey it conducted continued to show excessive barking. The City noted complaints of 'spontaneous dog noise particularly in the morning and the evening periods, lasting up to 10 25 minutes and consisting of howling, whimpering and fighting noises'.
On 7 March 2006, the City again wrote to say that it was awaiting a submission from the applicants about actions taken to bring the barking under control. Mrs Limnios replied on 14 March 2006 and provided background information to the nature of the complaints and training they had engaged in for the dogs.
On 24 June 2006, the City gave a formal caution to the applicants after complaints of the dogs barking had again been received.
On 3 January 2007, the City informed the applicants that the exemption had been renewed, that four dogs could be kept but that it would only be valid for six months and it would be subject to additional conditions. Those conditions included that the applicants had to continue working with an animal behaviourist to attenuate barking, and if any complaints were received, the exemption could be revoked.
On 30 March 2007, the City again wrote to the applicants to say complaints had been received about their dogs barking. The City's customer services operator had heard the dogs 'bark, howl and whimper' over the phone when the complainant called.
Further complaints were received in October 2007. In its letter dated 31 October 2007, the City noted that the complainant said that the dogs:
… are continuing to bark, howl and whimper in response to an increase in the number of visitors to the property. Also, on occasions when separated from each other in the yard with 1 dog at a time being taken inside the house whilst the other 3 remain secured in the pool area.
On 14 February 2008, the City nevertheless wrote to the applicants to inform them that a further exemption had been given for a period of 12 months. The same conditions continued to apply.
Due to ongoing complaints, the City again did a survey in March 2008. Some respondents recorded no problems with the dogs, while others sought the number to be reduced to two, due to excessive barking. The City informed the applicants on 29 April 2008 that the nuisance of dog barking had to be addressed within 14 days.
Further complaints were received over a period of time. Mr Crook, the main complainant, was required to fill out a sevenday diary in which the time and duration of barking was recorded. The diary covered the week of 6 August 2008.
On 25 November 2008, the Infrastructure and Community Development Committee of the City considered the issue. The applicants attended the meeting and made a written submission dated 25 November 2008. They explained the actions they had taken to ameliorate noise, including landscaping the backyard, using the services of an animal behaviourist, and applying medicine to keep the dogs quiet. They continued to question the sincerity of Mr Crook in lodging the complaints.
Further complaints were received in December 2008 and January 2009. Mr Crook filled out another sevenday diary for the week of 19 December 2008. The City conducted another survey in March 2009. Eight of 20 respondents did not approve of more than two dogs being kept, due to excessive barking.
The City finally informed the applicants, by letter dated 14 April 2009, that the application to keep more than two dogs had been refused. The City noted that an 'increased number' of residents were being affected by the barking.
The applicants lodged an application on 8 May 2009 with the Tribunal to review the decision of the City.

Statutory framework

The statutory framework against which the review occurs is as follows:

Dog Act 1976 (WA)

Section 26 of the Dog Act 1976 (WA) (Dog Act) regulates the limitation as to the number of dogs that may be kept on any premises. Section 26(1) of the Dog Act provides the number of dogs that may be kept on any premises may not exceed two, provided the local government may grant an exemption for a greater number of dogs to be kept (s 26(3) of the Dog Act). The local government may, in granting the exemption, determine certain conditions under which the exemption operates. The local government may not grant exemption for more than six dogs to be licensed. The exemption granted by a local government may be revoked or a renewal of the exemption may be refused. If a person exceeds the number of dogs, it constitutes an offence that may attract a penalty of up to $1,000 and a daily penalty of $100.
Section 26(5) provides that a person who is aggrieved by the conditions imposed by the local government, or the refusal of the local government to grant an exemption, may apply to the Tribunal for the decision to be reviewed. An application to have a matter reviewed has to be lodged within 28 days after notice of the decision was served on the person affected thereby.

State Administrative Tribunal Act 2004 (WA)

The State Administrative Tribunal Act 2004 (WA) (SAT Act) determines that in exercising its review jurisdiction, the Tribunal must deal with a matter in accordance with the SAT Act and the enabling Act in this case the Dog Act (s 18(1), SAT Act). The SAT Act sets out in s 27 the nature of the hearing, the information that can be taken into account and the purpose of the review, namely to make the correct and preferable decision.
Section 29 of the SAT Act sets out the powers of the Tribunal on review and, in particular, that a decision of the Tribunal is regarded as a decision of the decisionmaker (s 29(5), SAT Act).
The hearing conducted by the Tribunal is de novo, which means the Tribunal is not restricted to the information that was before the City when it made the decision. The Tribunal can take into account any additional information that is of relevance to the application.

Contentions and evidence

The parties made written and oral submissions and called witnesses to testify in support of the respective submissions. The Tribunal took all of the submissions, information, and evidence into account in coming to its decision.

Respondent's submission

The submissions of the City as decision-maker can be summarised as follows:
a)The decision to refuse an application to keep more than two dogs must be affirmed.
b)The problems with these four dogs have been going on for a substantial period of time. Large resources have been spent in dealing with the complaints, and several cautions were given to the applicants.
c)The evidence of barking presented to the City justifies the decision. It is not only Mr Crook who complained; several other witnesses complained of ongoing barking, yelping and howling. The assistance given by the experts confirms that there was a problem, although Mr Limnios refused to accept there was a problem.
d)The City has gone out of its way to assist the applicants and they were given many opportunities and substantial time to resolve the problem. It appears as if they had had limited success from time to time, but then the barking would start again.
e)In weighing up the interests of the applicants, the dogs and the neighbours, the City is satisfied that the complaints are meritorious; that more than enough opportunity was given for the problem to be rectified; that the barking persists although it may decline from time to time; and that a final decision had to be made by refusing to issue an exemption.
f)The decision not to grant any further exemption should therefore be affirmed.

Applicants' submissions

The submissions of the applicants can be summarised as follows:
a)The refusal of the City to grant an exemption for the four dogs to remain on the premises was not the best and preferable decision and should be set aside and substituted with a decision to grant the exemption with the necessary conditions.
b)The owners of the dogs have a strong emotional bond and attachment to the dogs. It would be extremely upsetting to the owners and the dogs if an exemption was not given.
c)The owners have gone to great lengths to address any nuisance issues and they are willing to accept further conditions. The City has, by its conduct, created a situation where the applicants can expect that an exemption would be renewed.
d)The breed of these dogs, their size, age, and the fact that one has been sterilised, should all count in favour of an exemption being granted.
e)The property where the dogs are held is large, the landscaping has been adjusted to better accommodate the dogs and they generally remain inside the house. The applicants are willing to take whatever steps are required for the exemption to be granted.
f)The evidence of nuisance by barking is not convincing. While some of the witnesses complained about barking, many others who live in close proximity had no problem with the dogs. Many neighbours also said that other dogs in the area were also barking and that these dogs were not a nuisance.

Witnesses

Several persons, including an expert, gave evidence. The key elements of the evidence of the respective witnesses are as follows:

Brian Crook

Mr Crook lives immediately adjacent to the back, left portion of the lot of the applicants. His lot abuts the back garden of the applicants and the play area of the dogs. He has over the years made several complaints with the City about what he calls 'barking, screeching and yelping' by the four dogs. He says they would sometimes bark throughout the day, while other times in the evenings until late, and even in the middle of the night and early morning. He submitted two oneweek calendars to the City in which he marked the times of barking and the duration thereof. The diary shows barking at all hours of the day sometimes for short periods, sometimes longer. Barking would even be in the middle of the night. The design of the backyard of the applicants' property is such that the sound of barking is amplified if the dogs are under the patio. When they bark, he must sometimes close all doors and windows on the applicants' side of his house and even that does not prevent the noise penetrating his house. He said he has no personal vendetta against the applicants and has a genuine reason to lodge a complaint. He insists that, regardless of efforts made by the applicants, the barking would return again after a while. He described the 'wailing' sound the dogs make as 'horrible, that goes through your body'.

Richard Walsh

Mr Walsh lives adjacent to the right, back corner of the applicants' lot. He said although the dogs do not trouble him much, if he were adjacent to their house he would sell because of the dogs. He says there was no reason why neighbours should be expected to put up with so much noise. He says the dogs have a distinctive bark, and a high pitch, and cannot be confused with other dogs in the area. They would bark and yelp for no apparent reason and it seems when one starts, the others join in. He never lodged a formal complaint, but when the survey was done, he registered his opposition to four dogs.

Philip Edward Rowson

Mr Rowson lives in the third house to the left of the applicants' lot. He said that when they moved in, he immediately became aware of the four dogs, since they would bark, howl and yelp throughout the day. He says sometimes it would go quiet for a long period, but then it would start again and it would last a 'couple of hours' at a time. He further says that he could hear the dogs even if his doors and windows were closed and the television was turned up. He says the noises made by the dogs were more than mere barking it was a 'yelping' or 'screaming' sound. The noises differed from all other sounds in the area and were clearly distinguishable. He had not lodged a formal complaint with the City, but he indicated when he was interviewed that he would not want more than two dogs to be on the property.

Phillip Fernihough

Mr Fernihough lived on the right, next to the lot of the applicants. There is a vacant block between his house and the applicants. He lived at the house between December 2007 and June 2009. Immediately after moving in, he became aware of the dogs barking. Sometimes the barking would be for a few minutes, other times for up to 20 minutes, and sometimes for more than an hour. According to him, the noise sometimes prevented him from using his backyard patio, and even inside his house he had to turn up the television to drown the noise. He informed the ranger previously when he was visited of the barking. He also lodged a formal complaint with the City. He finally sold his house because he could no longer tolerate the nuisance. He says the barking was 'high pitched' and was clearly distinguishable from other dogs in the area. He also completed a barking calendar. Most of the time the barking would be for about a minute at a time, but it would be repeated during the day. About once a month the barking would last for about an hour nonstop.

Colin Hanley

Mr Hanley is the senior community ranger of the City of Stirling. He explained the approval that was given for the dogs to be kept, the conditions attached thereto, the ongoing complaints, and the efforts at remedial action. He emphasised that the complaints received were not limited to one neighbour; at least three had complained, and during the interviews other neighbours also opposed the keeping of the four dogs. In fact, in one survey, eight of 14 properties surveyed opposed it. On the basis of undertakings giving by the applicants, and the treatment of the dogs with medication, the City decided to grant a further exemption. In January 2006, another survey was conducted and seven of 10 properties complained about the barking. Complaints were ongoing, with warnings following and remedial action being taken. In November 2007, a further survey was conducted, with five of 17 properties complaining about barking. The barking collars applied by the City during February 2008 did not indicate excessive barking and a further extension was therefore granted. Complaints, however, persisted. In March 2009, the City received another application for an exemption. The City again undertook a survey and eight of 20 properties opposed an exemption. The City refused to grant a further exemption. He said there was evidence of the noise abating from time to time but then it would flare up again to previous levels. At those times the noise went 'beyond reasonable tolerance' levels. He said he once visited the property, and while he was speaking to Mr Limnios, the dogs were barking unabated for about 20 minutes without Mr Limnios being able to control them or quieten them down.
He concluded his evidence by saying the following:
Over the past 7 years, the City has given the Applicants every opportunity to take steps to reduce the noise created by their dogs. Unfortunately, the Applicants' [sic] have not been able to reduce the noise from their dogs to a level that is acceptable to the surrounding community.

Theresa Richardson

Ms Richardson lives to the left corner opposite the street across from the residence of the applicants. She said she had been living there for four years and did not experience any problems with the dogs. They may bark at occasions but not at the level that justifies complaints. She had no objection if an exemption were granted. She admitted that she might be protected by the backyard of the applicants facing away from her lot, but she said she would nevertheless hear the barking if there was a problem.

Janet Foulds

Ms Foulds lives immediate opposite the applicants across the street. She has been living at this address for 13 years and has not experienced any problems with the dogs. She would, in fact, regard them as well behaved and very good. She has no objection to an exemption being granted. She accepted that her lot may be shielded away from barking by the house of the applicants, but she also stressed that had there been any problem with barking, she would have heard it.

Tina Taylor

Ms Taylor is the immediate neighbour of the applicants. Her lot abuts the applicants' property to the front left area. She has been living there for about 12 years and is familiar with the dogs. She said there was nothing in the behaviour of the dogs that had caused her to feel aggrieved or to support any complaints being lodged. The dogs did not behave in any extraordinary way from any other dogs in the area. She said that they used to have a fibro house and if the dogs were a problem, they would have heard it very clearly. She has, however, not lived at her premises between May 2008 and December 2009, due to renovations being conducted. She submitted two letters from her builder, Mr Neaves, in which he said that he never saw or heard the dogs acting in a manner that would justify complaints.

Monika Junkev

Ms Junkev has been living at her lot for 16 years and it is to the right of the applicants' premises. She gave a short, written statement in which she says that the barking does not trouble her and that it is 'normal' for dogs to bark like the dogs of the applicants.
She was not called to give evidence.

Garth Jennens

Dr Jennens is an expert on animal behaviour. He has been providing animal behaviour services in Perth for more than 25 years. Mr Limnios was referred to Dr Jennens by the City. He said that having worked with the applicants, they were cooperative at all times and implemented all of his recommendations. In his submission to the City on 25 November 2008, he said this was one of the most 'difficult, time consuming and frustrating situations' he had ever had to deal with. He proposed a treatment program for the dogs, including alterations to the backyard and medicine to calm them down. He said, in his letter, that he only once saw evidence that would justify a nuisance complaint. He said that in the light of the absence of 'independent verification of the multiple complaints', an exemption should be granted. He further said that in light of the refusal of the City to provide Mr Limnios with details about the allegations, there was not a lot that could be done to correct the purported problem.
Dr Jennens concluded his primary evidence by saying that since Mr Limnios implemented the program in 2005, 'there have been very few occasions where his dogs could be considered a nuisance by barking or whining'. He advised against the dogs being separated, since they have bonded and anxiety levels may increase due to separation.
In cross-examination, Dr Jennens questioned the credibility of complaints lodged by Mr Crook. He said that during the visit to Mr Crook's residence, he found him to be 'obsessive' with what was happening in the lot of the applicants. Dr Jennens did not visit any other neighbours to interview them about possible complaints of barking. He nevertheless prescribed medication for the dogs in an effort to change their barking patterns and anxiety levels. As far as the diaries kept by Mr Crook are concerned, Dr Jennens observed that in his experience the times marked were not consistent with his experience of problem barking. He did what he could to treat the dogs, but unless further evidence was given to him by the City, his hands were tied. He said that further independent verification was required before he would accept the veracity of Mr Crook's complaints. He said that, on average, it would not be unusual for a dog to have 12 20 barking episodes per day. Each episode may comprise a number of barks. Cumulatively, that would mean about 50 - 80 barking episodes for the four dogs per day each consisting of a number of barks.

Athanasios Limnios

Mr Limnios provided a detailed background to the way in which they had come to hold the four dogs and the circumstances surrounding the application. The applicants have, over a period of time, sought and received approval on several occasions to keep four dogs at the property. In order to accommodate any complaints from neighbours, they have made substantial structural alterations to their backyard to dampen any noise and to provide the dogs with a play and exercise area. They have also retained the services of two experts in animal behaviour to assist them. According to their knowledge, there was only one neighbour, Mr Crook, who complained about the dogs. Mr Limnios said during the hearing that he was surprised to learn at the hearing that other neighbours also complained, and the extent of their complaints. Mr Limnios explained that since the City spoke to them the first time about complaints, he had indicated his willingness to do anything to address concerns of neighbours. The complaints have had a severe impact on their family life and he would take any reasonable action to reduce noise, if any. He did exactly what he was advised to do by Bark Busters and Dr Jennens. Both experts told him that the problem had been brought under control and that unless additional evidence was provided by the City, there was nothing more they could do. The dogs were also placed under medication to calm them down. The medication is currently not administered on a daily basis but is given to the dogs whenever the applicants think they may become excited for example, when visitors arrive. The dogs may bark when visitors arrive or when members of their family come home, but otherwise they are just normal dogs that may play outside from time to time. The dogs are sometimes alone, but on most of the days there is someone to take care of them. There are many other dogs in the area that also bark from time to time. The dogs have been part of the family for a long period and to separate them would be cruel and unjust. It is only because of one neighbour that the matter has been blown out of proportion.

Consideration

It is generally accepted in our society that dogs can bring much joy to families and are often so integrated with a family that they become 'part' of the family life. The Act therefore allows for two dogs per household in recognition of the pleasant contribution they often make to family life. It is not uncommon for persons to refer to dogs as akin to their 'children'. Dogs are indeed often more than mere pets. They tend to become an extension of the household. The concerns and anxiety that the applicants experienced when they were told to reduce the number of dogs, was therefore understandable.
At the same time, account must be taken of the responsibility of an owner to keep dogs in a manner that does not cause a nuisance to neighbours. It is especially when an exemption to keep more than two dogs is granted, that an owner must take the necessary precautions to ensure that the exemption is not withdrawn or that a renewal of it is refused.
It is obvious that four dogs may collectively be noisier than two dogs and it is, therefore, incumbent on an owner to ensure that dogs are under proper control. The fact that dogs become part of the family, therefore, brings an added responsibility to an owner to ensure that they do not act in a way that would cause them to be separated from the family. If the owner fails in their duty, the local authority is obliged to act in the interests of the public by revoking an exemption to keep more than four dogs.
The love we have of dogs does not mean, however, that dog ownership should not be regulated. Dogs can also become a nuisance to society if they are not well taken care of, or if their barking causes disruptions. It is well known how disruptive and irritating ongoing barking of dogs can be, especially if the barking takes place for no apparent reason, or if it is at unusual hours or for prolonged periods. The pleasure of dog ownership can easily turn into neighbourhood conflict, disputes and disruption of lives. There are also substantial costs imposed on rate payers if investigations are launched into whether a complaint has merit. In these proceedings, it is clear that the City has spent many thousands of dollars over the years on surveys, interviews, notices, and so on.
Dog ownership is therefore a multifaceted affair that involves the public, and not merely an interaction between owner and dog.
The Dog Act provides the legal framework that regulates the ownership and registration of dogs. The City of Stirling is, in this case, the authority that manages the operation of the Dog Act and it must balance the public and individual interests.
The Tribunal is satisfied that in these proceedings the City has gone out of its way some might even say the City has been too tolerant to accommodate the interests of the applicants. Several surveys were done all at cost to rate payers; extensive correspondence over many years were exchanged; and finally a hearing over a two day period occurred. The City did, indeed, act in a very responsible and sympathetic manner. The cost of these proceedings, and the actions taken by the City over several years, would probably run into several thousands of dollars all for the account of rate payers.
The Tribunal does not accept the criticism expressed by Dr Jennens that the City has been 'unhelpful' by not releasing the detail of the complaints about the barking. The City went out of its way to address the complaints in a responsible manner. The City also has a duty of confidentiality towards neighbours who lodge a complaint and there is no reason why the identity of complainants should have been disclosed to Dr Jennens. All those details were properly disclosed during the hearing. Nothing prevented Dr Jennens or Mr Limnios from approaching neighbours to interview them about possible complaints. Dr Jennens could have conducted his own investigations but he failed to do so.
The Tribunal rejects Dr Jennens' criticism of the City's handling of the matter. In fact, some neighbours may even criticise the City for being too lenient and for adopting a too accommodative response by granting further exemptions when serious and consistent complaints had already been received.
Although the Dog Act limits the number of dogs per property to a maximum of two, the local government may grant an exemption for more dogs to be held (up to a maximum of six) and impose certain conditions subject to the provisions of that Act.
It is not by right that additional dogs may be kept. The City, if it grants an exemption, must ensure that conditions that may accompany an exemption are met. This is also understandable. By allowing more than two dogs on a single premises, the risk of collective nuisance, and especially of barking, increases. For example, if Dr Jennens is correct in his estimation that the average dog has 12 20 barking episodes per day, with each episode comprising several barks, it means that with four dogs there may be up to 80 or more barking episodes per day emanating from one lot. If that is the case, the records of barking kept by Mr Crook seem very plausible. The barking does not include other noise of yelping, playing, fighting and screeching. It cannot be reasonably expected from a neighbour to accept four dogs having 80 or more barking episodes per day. It would be far beyond the levels of tolerance required from urban living.
The local government must, when it considers an application for an exemption to keep more than two dogs, apply its mind to the application and cannot merely rely on a policy of two dogs per lot to justify a rejection of an application for exemption. For example, refer to Robins and Shire of Harvey [2005] WASAT 28 (Robins) in which the Tribunal rejected the contention of the Shire that an exemption to keep three dogs could not be granted due to the size of the block. In that matter, the Tribunal found that the block was indeed big enough to hold a third dog.
The local government must take several factors into account when making its decision, 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 local government also has to consider factors that may justify the making of an exemption such as the particular circumstances of the applicants, previous complaints, the breed, and the motivation supporting the application for exemption, (Robins at [20]).
The question inevitably arises as to how far a local government should go to investigate a complaint and when it could be satisfied that action is justified.
In the matter of Corrigan and Shire of Northam [2009] WASAT 140 (Corrigan), the Tribunal also had to review the decision of a local authority in reaction to a complaint about barking. The Tribunal observed as follows at [34]:
A 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. (Tribunal emphasis )
The Tribunal is satisfied that the standard set in the Corrigan matter can be applied in these proceedings.
The City in these proceedings went out of their way to discharge their duties properly, humanely and in proper balance of competing interests. The City also gave the applicants more than ample time to find a solution to the problem of complaints about their dogs barking.
The following is a summarised overview of actions the City undertook over the years since the first exemption was granted:
•Approval for an exemption was given on several occasions sometimes after complaints had been received, but out of a sense of humaneness to the dogs, approval was given for four to remain.
•Numerous letters of caution and formal notices were directed to the applicants in which they were made aware of the complaints and the seriousness thereof.
•The City gave to the applicants the names of professional persons who may be able to assist with training of the dogs.
•Time was given for the professional people to develop training schedules and actions for the applicants to apply on the dogs.
•The City had discussions with Dr Jennens and although they did not disclose any confidential information to him, they informed him about the nature of the complaints.
•Several visits by officials of the City were made to the premises and neighbouring premises.
•Several surveys of neighbouring properties were conducted.
•Two complainants were given weekly calendars to complete.
•The applicants were given an opportunity to address a committee of the Council. A letter of Dr Jennens was also tabled at the meeting.
•The years of review, cautions, visits, and surveys would have cost the City a substantial amount in terms of staff time and resources.

The Tribunal is more than satisfied that the City had been acting at the highest professional standard and that it would easily pass the test set in the Corrigan matter.
The Tribunal will hence deal with the evidence of the respective witnesses.
The main complainant, Mr Crook, gave evidence of ongoing barking for several years. The way in which he described the barking was consistent with the evidence given by Mr Rowson, Mr Fernihough and Mr Walsh. It was also consistent with the evidence of Dr Jennens that the dogs were suffering from separation anxiety.
The Tribunal finds it completely implausible that Bark Busters and Dr Jennens would both prescribe remedial procedures, and even medicine, if there was not a problem with the dogs.
The two sets of schedules kept by Mr Crook are indicative of incessant barking at all hours of the day. The trend indicated in his schedules is confirmed by the schedule kept by Mr Fernihough. He explained that at times the situation got better, but then it would again return to a state where their daily lives would be disrupted by what he called 'barking, yelping and wheezing'. The problem became so intense at times that they had to close their door and turn up music to shut the noise out.
There is nothing in Mr Crook's evidence to suggest that he is 'obsessive' as Dr Jennens suggests in his evidence.
In fact, if Mr Crook was frustrated, one would understand it, since for so many years his complaints have continued without the matter being resolved. It is therefore understandable that he became frustrated and annoyed at the ongoing problem. In fact, few people would not be frustrated and annoyed at the incessant barking.
The Tribunal accepts the evidence of Mr Crook, as well as the time charts that he had to comply with at the request of the City. Those charts, even if the level of detail may be open to some criticism, are indicative of a serious problem with barking. Although Dr Jennens questioned the veracity of the charts, he had no charts of his own or any research that he conducted to provide a different picture to the Tribunal. The charts kept by Mr Crook and Mr Fernihough are to be preferred to the very general statements of Mr Limnios and Dr Jennens that question the content of the charts.
The evidence of Mr Walsh, Mr Fernihough and Mr Rowson is consistent with one another and with the evidence of Mr Crook. Their evidence was that the dogs bark at all hours of day, that the situation becomes better from time to time but that it again slips out of control. They described how the sounds the dogs made were clearly distinguishable from other dogs. They described it as a combination of a highpitched barking, yelping and screaming. They were consistent about the nature of the noise, the frequency of it, and the fact that it could be clearly distinguished from other dogs barking.
They were also in agreement that an exemption should not be granted for more than two dogs to be held at the premises.
The level of detail of evidence given by Mr Fernihough and Mr Walsh was such that the Tribunal could not discount it as a fabrication or an exaggeration. The same applies to the evidence of Mr Rowson who lives a few houses away. His evidence was consistent with that of Mr Crook, Mr Walsh and Mr Fernihough. Mr Rowson's house is about 50 metres from the applicants, but account must be taken of the renovations that had occurred at the lot of Mr Walsh. It is therefore entirely plausible that he could clearly hear the dogs since there were, in effect, for some time two vacant blocks between him and the applicants.
Dr Jennens agreed during examination of his evidence, that if he had had access to evidence that supported the complaints of Mr Crook, he would have taken Mr Crook's complaints more seriously. The same applies to Mr Limnios, who expressed surprise at the hearing when he heard about the extent of the complaints by other neighbours. It appears that both Mr Limnios and Dr Jennens were so focused on the complaints of Mr Crook, that they did not consider the views of other neighbours.
The Tribunal finds the evidence of Mr Hanley about the background leading to the City's decision very instructive. His evidence demonstrated the diligence, patience and care the City had shown in dealing with the complaints. The City came to its final decision after years of complaints. It did not rush into refusing an exemption. It gave several exemptions previously, regardless of complaints by neighbours.
In fact, if the City can be criticised for how they dealt with the matter, it is probably that they allowed the situation to continue for so long, regardless of the ongoing complaints they received.
The Tribunal prefers the evidence of those who complained about the dogs to those who did not have an objection to an exemption being granted.
Ms Richardson and Ms Foulds live opposite the street from the applicants and are removed from the area where the dogs spend most of their time. The sound they made is also shielded by the applicants' house. It is therefore not surprising that they do not bear the brunt of the barking or other sounds the dogs make.
The Tribunal accepts their evidence as being in line with their experience, but it does not negate the impact the dogs have on the immediate neighbours.
As far as the evidence of Ms Taylor is concerned, the Tribunal notes that she has not lived at the premises for close to 18 months. Although the Tribunal accepts the sincerity of her explanation that she would have heard barking, it must also be noted that the location of her property is such that it does not abut the backyard of the applicants. She would therefore be shielded, at least in part, from the type of noise that Mr Crook was exposed to.
The letters provided by the builder, Mr Neaves, were of little assistance. He could have been called to give evidence and to explain his statements. It also appeared that he was only on the site for a limited time and during day hours. The same can be said of the letter of Ms Junkev who was not called to give evidence or to substantiate the information she provided.
The evidence of Mr Limnios must be assessed against the background that he was of the view (until the hearing it seems) that only one neighbour, Mr Crook, had complaints about the dogs. If Mr Limnios (and Dr Jennens) had been aware earlier of the extent of complaints, other remedial action may have been taken.
The Tribunal accepts the integrity of Mr Limnios's efforts to do whatever is necessary to address the concerns. It is, however, surprising that in all the years, neither Mr Limnios nor Dr Jennens had spoken to other neighbours about possible complaints. Had they done so, they might have realised the problem was more widespread than what they had believed in the first instance. Their assessment that Mr Crook was vexatious influenced the way in which the complaints were dealt with.
The Tribunal accepts that Mr Limnios had relied on Dr Jennens, in particular, to undertake his own independent research and to give advice as to what remedial actions should be taken. It appears, however, as if no research was undertaken by Dr Jennens, other than directing inquiries to the City for example, independent monitoring, interviews with neighbours, extensive wearing of bark collars, and so on.
Although Mr Limnios is aggrieved that the City refused to release the exact nature of complaints or the names of those who complained, he did not take any independent action to verify himself of the behaviour of his dogs. According to his admission, the dogs were left alone for substantial periods of time and he admitted that he would not be able to say what their behaviour was like in those periods. He further acknowledged that the dogs may suffer separation anxiety and hence medication had been prescribed to calm them. He continues to apply the medication when they receive visitors. This is indicative to the Tribunal that a problem remains with the behaviour of the dogs. If not, why would medication be administered to dogs that otherwise act calmly?
Mr Limnios told the Tribunal that he had made his own recordings of the dogs barking, but for reasons unexplained, he did not tell Dr Jennens about those recordings; he did not present the recordings to the City and the recordings were not made available to the Tribunal. This raises issues of credibility about his evidence.
In response to questions, Mr Limnios refused to accept that there was indeed a problem with the dogs. He said he would not categorise the evidence about barking as a 'fabrication', but he thought it was exaggerated. According to him, the barking or noises made by the dogs had at no stage been exceptional. In general, the evidence of Mr Limnios was, for understandable reasons, defensive and of limited assistance, since he could not say how the dogs behaved in his absence.
The Tribunal finds the evidence of Dr Jennens generally unhelpful and biased. This is for the following reasons:
•It seems as if Dr Jennens acted as an advocate for an exemption to be granted, rather than as an expert to assist the Tribunal in dealing with the issues at hand and to come to a correct and preferable decision. The Tribunal had to remind Dr Jennens on more than one occasion that he had a duty towards the Tribunal to assist it to come to the correct and preferable decision. He appeared hesitant to reply to some of the questions put to him by the Tribunal especially if the answer might be to the detriment of the case put forward by the applicants.
•The fact that Dr Jennens, after having visited Mr Crook, concluded that he was 'obsessive', seems to have influenced his analysis of Mr Crook's complaints. Dr Jennens failed to interview other neighbours and, as a result, concluded that Mr Crook was either exaggerating or fabricating evidence about barking or the severity thereof. Had he spoken to other neighbours, he might have gained more insight into the nature and seriousness of the complaints. Dr Jennens blamed the City for not providing him with more information, but nothing prevented him from interviewing other neighbours.
•Although Dr Jennens had strong reservations about the barking schedules kept by Mr Crook, he failed to employ any research of his own to counter the allegations made by Mr Crook. He failed to adequately take into account that the barking schedules were supported by ongoing complaints by other neighbours. Had he taken into account the bigger picture of complaints, or had he undertaken any research of his own, he may have given greater credibility to the schedules kept by Mr Crook.
•Although Dr Jennens sought an opportunity to conduct his own research on grounds that the City had relied on what was called incomplete information and unsubstantiated complaints, he did not use the opportunity to conduct any research. In examination, the Tribunal asked Dr Jennens what were examples of a research methodology that one would employ in such a matter. He suggested the following options: personal observations of the dogs over a period of time, interviews of neighbours, use of equipment such as barking collars, video and audio recording, and complaints of neighbours. In further questioning by the Tribunal, Dr Jennens conceded that he had not embarked on any of these research methodologies, other than to rely on what officials of the City told him. The lack of independent research by Dr Jennens reduces the credibility and reliability of his evidence as expert and emphasises that he probably confused the roles of an advocate and an expert.
•In [7] of Dr Jennens' witness statement, he draws the following important conclusion:
Since Mr Limnios implemented my program in 2005, there have been very few occasions where his dogs could be considered a nuisance by barking or whining. These were isolated incidences, and were immediately dealt with by Mr Limnios, and could not be substantiated over a period of time.
The Tribunal spent considerable time to get Dr Jennens to explain how he reached this important conclusion. It appears that Dr Jennens had in fact no grounds upon which he could defend the factual basis of the statement. He did not independently verify the behaviour of the dogs so as to conclude that there were only 'few occasions' where they had barked. He further had no grounds, other than what Mr Limnios had told him, to conclude as fact that there were only 'isolated incidences' of barking. The Tribunal rejects this key statement of Dr Jennens for the lack of credibility thereof.
The Tribunal is satisfied that, given the evidence of those complaining about the dogs and the City's efforts to resolve the matter over a period of years, the decision not to grant the exemption was the correct and preferable decision. The decision should therefore be affirmed.

Finding

The Tribunal finds that in light of the evidence before it, no further exemption should be granted to the applicants to keep more than four dogs at their premises. The decision made by the City should therefore be affirmed. The applicants should be given a period of 60 days to comply with the order.

Orders

1. The application is dismissed.
2.The decision by the City of Stirling not to grant an exemption for Mr and Mrs Limnios to keep more than two dogs at their premises is affirmed.
3.Mr and Mrs Limnios must reduce the number of dogs held at the premises to no more than two.
4.Mr and Mrs Limnios must comply with these orders within 60 days from the date thereof.

I certify that this and the preceding [106] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER