MASKELL and SHIRE OF PLANTAGENET
[2005] WASAT 312
•25 NOVEMBER 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: MASKELL and SHIRE OF PLANTAGENET [2005] WASAT 312
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: ON THE PAPERS
DELIVERED : 25 NOVEMBER 2005
FILE NO/S: CC 3201 of 2005
BETWEEN: GRAEHAME WENLOCK MASKELL
Applicant
AND
SHIRE OF PLANTAGENET
Respondent
Catchwords:
Health Act Review of decision to allow rooster Nuisance
Legislation:
Health Act 1911 (WA), s 36, s 36(1)
Shire of Plantagenet Health (Local Laws) 1997 (WA), s 5.4.4(1), s 5.4.4(2), s 5.4.4(4)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 29(3), s 29(5), s 32(2)(a), s 32(4)
Result:
Orders made
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Self-represented
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of the Tribunal's decision
Mr Maskell sought review of a decision by the Shire of Plantagenet to grant approval to a resident of the town to keep a rooster. Mr Maskell provided evidence of times at which the rooster caused a disturbance. The Tribunal is satisfied that Mr Maskell has shown that the Health Act 1911 (WA) has been breached. Orders are made for the rooster to be removed.
Orders sought
The applicant sought the following order, as amended, under s 36(1) of the Health Act 1911 (WA) (H Act):
"that the decision of the respondent made on 16 August 2005 not to revoke a resolution made on 8 February 2005 permitting Mrs Giles to keep a rooster be set aside; alternatively, that the time for bringing this application be extended and the decision made by the respondent on 8 February 2005 permitting Mrs Giles to keep a rooster be set aside."
At the directions hearing held on 13 October 2005, Senior Member Raymond made an order for the matter to be determined on the papers. I have now considered the evidence and submissions, and my determination and reasoning follow.
The role of the Tribunal on review
I will first deal briefly with the role of the Tribunal on review.
This review is conducted by way of a hearing de novo as if it is the first time the matter is heard. Section 36 of the H Act enables a person who is aggrieved by the decision of a local government to apply to the Tribunal to review the decision.
The Tribunal's consideration of the application is not confined to the matters that were before the Shire when the decision was made (s 27(1) State Administrative Tribunal Act 2004 (WA) (SAT Act)). The Tribunal is placed in the position as Shire Council. The Tribunal is also not limited in its review to the reasons for decision by the Shire. The purpose of the review is therefore for the Tribunal as decisionmaker to produce a correct and preferable decision (s 27(2) SAT Act) after it has taken into account all relevant information.
In the same way that Mr Maskell had to satisfy the Shire that the Plantagenet Health (Local Laws) 1997 (WA) (the Act) had been breached by Mrs Giles, he now has to satisfy the Tribunal.
The Tribunal is not bound by the rules of evidence (s 32(2)(a) SAT Act) and may "inform itself on any matter it sees fit" (s 32(4) SAT Act).
In considering the application, the Tribunal has taken into account all of the evidence, the exchange of correspondence and submissions made by the parties.
The powers of Tribunal according to s 29(3) of the SAT Act are to:
(i)affirm the decision of the Shire; or
(ii)vary the decision; or
(iii)set aside the decision,
and make appropriate orders.
The decision of the Tribunal is regarded as a decision of the Shire (s 29(5) SAT Act).
Background
The background to Mr Maskell's application can be summarised as follows.
Mr Maskell has, over a period of several months, raised complaints about the disturbance caused by a rooster kept on the property of his neighbour, Mrs Giles, at Lot 3 Marmion Street, Mount Barker. In December 2004, Mr Maskell submitted a formal, written complaint to the Shire. Mr Maskell alleged that the rooster crowed incessantly, that it caused severe sleep disturbance, that it crowed during the night and early morning, and that is was kept without permission of the Shire.
Mr Thacker, who at the time was the environmental health officer of the Shire, investigated the complaint and requested Mrs Giles to remove the rooster. It was the opinion of the officer that the rooster was kept in contravention of the s 5.4.4(1) of the Act. At the time of the complaint, the rooster had been kept without approval of the Shire.
Following the notice, Mrs Giles requested the Shire Council for permission to retain the rooster. Mr Thacker prepared the briefing note to the Council. He recommended to Council that the application be refused on the grounds that it was reasonable to believe that the rooster was creating a disturbance. He concluded "it is general practice in other Councils that, if a complaint was made, the Council would require the removal of the rooster".
The Council decided unanimously to grant approval for the rooster to be kept, on the ground that "Council did not believe that the rooster constituted a nuisance". In its later submission to the Tribunal, Council expanded on its reasons for decision.
Mr Maskell continued complaining about the rooster and obtained legal advice to assist him in furthering his complaint. He also approached several government departments and the Ombudsman to seek assistance. He submitted another complaint to the Shire on 26 April 2005. Mrs Giles had, in the meantime, taken some steps in an attempt to control and abate the noise made by the rooster but, according to Mr Maskell, the situation did not improve substantially.
The Shire officials requested from Mr Maskell detailed notes about the disturbance and the times of the crowing. Mr Maskell submitted several records with the day, time and explanation of the noise.
As a result of the further complaint, the matter was again placed on the agenda of Council on 28 July 2005. Mr Eric Howard, the environmental health officer, updated the Council on efforts made by Mr Maskell to bring the matter to the attention of several authorities.
Mr Howard concluded that, in light of the ongoing complaints and the proximity of the properties to one another, it should be accepted that the noise reduction efforts implemented by Mrs Giles had failed. The recommendation made to Council was for:
(i)approval to keep the rooster be withdrawn;
(ii)the rooster be removed within seven days from service of the notice.
However, the motion lapsed for want of a mover.
On 8 August 2005, Mr Maskell applied with SAT for relief and a review of the decision by the Council.
In its reasons for opposing the application, the Shire explained that Mr Maskell's property is situated within the "extremities" of the town's residential zone and that the area adjacent thereto is associated for its rural type activities. The subject land has a Residential Density Coding of "R2/15". In its preliminary deliberation, Council considered the locality to be predominantly rural in nature with associated rural noise. According to Council, Mr Maskell chose to move into an area with a semi-rural lifestyle. Council concluded that the rooster did not unreasonably interfere with Mr Maskell's health, welfare, convenience, comfort or amenity.
The provisions of legislation
The application is brought under the Act. The Act requires that no person may hold a rooster within a townsite without written approval of the Council (s 5.4.4(2)) and that Council may revoke an approval if the rooster causes a nuisance (s 5.4.4(4)).
Consideration
The Act provides that a rooster may not be kept "within a townsite" without written approval of the Shire (s 5.4.4(1)). Although the Act does not specify what considerations the Shire must take into account prior to granting authorisation, subsection (4) provides the answer. It enables the Shire to revoke approval if the bird is "causing a nuisance". It can therefore be expected from the Shire to apply a similar test prior to granting authorisation namely, what would be the likely impact on neighbours?
In the matter before the Tribunal, the Shire granted approval to Mrs Giles only after complaints had been received. Council was aware at the time of decision that complaints had been lodged. Council could therefore not defend its decision to approve the application by saying that it was not aware of the nuisance caused by the rooster.
The Council was fully aware that:
(a)Mrs Giles was keeping a rooster in contravention with the Act;
(b)complaints had been received; and
(c)an officer employed by the Shire advised against approval of the application.
The Council nevertheless authorised the holding of the rooster.
Although the further complaints were brought to the attention of the Council, it again did not act on the advice received from the responsible staff.
The Tribunal notes that the town has a semi-rural lifestyle, particularly in regard to lots that are close to the periphery of the town. However, the zoning of the lots of Mr Maskell and Mrs Giles are residential and the Shire has to comply therewith.
The principle that must be respected by the Shire is that residents in an area zoned as "residential" would expect from the Shire to enforce legislation dealing with the holding of roosters. If not, what is the purpose of the legislation or the meaning of "residential" zoning? The Shire's duty of care requires of it to enforce its laws for the benefit of all its citizens, and most importantly, to enforce the provisions of the statutes under which it operates.
The Act refers particularly to the holding of roosters in a townsite, as Parliament was mindful of the potential nuisance, disturbance and noise they can cause to neighbours. According to the Shire's information, the rooster pen is located approximately 40 metres from Mr Maskell's dwelling. That is hardly a distance that would be expected in a rural zoning.
It appears from the detailed records kept by Mr Maskell that the rooster is indeed a nuisance. The Macquarie Dictionary (Revised Third Edition, 2004) defines a "nuisance" as an "annoying thing". The records shows that the rooster had been crowing at times that cannot be described as "reasonable". For example, 8 May (3.18am); 11 May (4.16am); 19 May (4.05am); 5 June (5.04am). This is the type of nuisance the Act intended to prevent from occurring.
Staff from the Shire agreed that Mr Maskell had cause to complain. On two occasions, they advised the Council to take action. On the first occasion, the Council overruled the advice and decided to grant authorisation. On the second occasion, nobody would move the proposed motion for the authorisation to be revoked.
The Tribunal is satisfied that permission should not have been granted in the first place for Mrs Giles to keep the rooster. Prior to Mrs Giles' application, she kept the rooster in contravention of the Act. The Council was aware of complaints and the Shire's official advised against approving the application to keep the rooster.
The Tribunal's conclusion is that the rooster does constitute a nuisance as foreshadowed by the Act. The decision by the Council on 8 February 2005 should therefore be set aside and notice be given for the rooster to be removed.
Orders
1.The time to bring the application is extended to 8 August 2005.
2.The decision by the Council of Plantagenet dated 31 January 2005 to allow Mrs Giles to keep a rooster at Lot 3 Marmion Street, Mount Barker is set aside and the authorisation to keep the rooster is revoked.
3.The Shire must, within 14 days from the date of this order, notify Mrs Giles that the rooster must be removed from the property within seven days from the date of the notification.
I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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