McLeod and Shire Of Harvey
[2007] WASAT 44
•16 FEBRUARY 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: DOG ACT 1976 (WA)
CITATION: MCLEOD and SHIRE OF HARVEY [2007] WASAT 44
MEMBER: MR P McNAB (MEMBER)
HEARD: 16 NOVEMBER 2006
DELIVERED : 16 FEBRUARY 2007
FILE NO/S: CC 1610 of 2006
BETWEEN: BELINDA MCLEOD
Applicant
AND
SHIRE OF HARVEY
Respondent
Catchwords:
Local government - Control of animals - Domestic pets - Dogs - Local law prescribing maximum of two dogs in residential area - Application for exemption - Two small dogs and one medium size dog owned by applicant - Fenced single storey strata dwelling - Factors to be considered for exemption - Complaints from neighbours received only in consultation process - Noise of dogs and size of premises identified by objectors - Generalised complaints of dog barking - Objectors not identified or called by respondent - Ranger's report favourable to applicant - Council officers recommending approval - Council refusing exemption - Recommended conditions agreed to by applicant - Tribunal satisfied that conditional exemption proper - Application for review allowed
Legislation:
Dog Act 1976 (WA), s 26(3), s 26(3)(c), s 26(5), s 38(2)(b)
State Administrative Tribunal Act 2004 (WA), s 31
Shire of Harvey Dogs Local Law, cl 3.2
Result:
Application for review allowed
Exemption granted upon conditions
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr J Gale (Acting as Agent)
Solicitors:
Applicant: Self-represented
Respondent: Shire of Harvey
Case(s) referred to in decision(s):
Mnyirrinna v McIntosh [2003] WASCA 305
Pinnock & Anor and Shire of Mundaring [2005] WASAT 13
Robins & Anor and Shire of Harvey [2005] WASAT 28
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
In this review, the applicant (Ms McLeod) sought to overturn a refusal by her local Council (Shire of Harvey) so that she could, in effect, keep an extra dog at her residence in Australind in the Shire.
The Shire was authorised by Parliament to control the number of dogs in residential areas and, in effect, had placed a limit of two dogs per residence. The Shire had refused an exemption from this limitation in respect of the applicant.
Ms McLeod owned three registered dogs, aged from one to 13 years old. Two of the dogs were small animals and the third, the oldest, was a medium sized animal. The oldest ‑ and quietest ‑ dog was, unfortunately, earmarked for destruction if approval were not to be granted.
There was nothing in the history, breed or the nature of the dogs to indicate any cause for concern in terms of their propensity to be a nuisance.
It seems that the Shire was mostly concerned about various neighbours' complaints or objections received by it in the consultative process. However, a close analysis of the objections disclosed fairly generalised concerns about the noise from barking dogs in the neighbourhood. In fact, the Shire had never received any specific prior complaint about Ms McLeod's dogs.
The evidence indicated that the dogs were well cared for and were accommodated adequately in Ms McLeod's strata unit.
The Tribunal was satisfied that the applicant had made out her case and set aside the Shire's decision and granted an exemption under the local law relating to dogs.
The Tribunal also indicated that local government decision‑making in this area of dog control should now be informed by the factors to be considered which are to be found in the published decisions of the Tribunal.
Introduction
In Mnyirrinna v McIntosh [2003] WASCA 305, at par [1]‑[2], the Supreme Court noted that:
"Dogs can be loyal and wonderful pets. Their owners can love them dearly. However, their owners can sometimes forget that, like small children, not everyone finds them endearing. If they escape their owner's control, they can be positive nuisances and, on occasion, even do harm. To deal with dogs, particularly those found in residential areas, the Dog Act 1976 (WA) was enacted".
This is a review of a refusal by the respondent Shire of Harvey to permit the applicant, Ms McLeod, to keep more than the prescribed number of dogs on her residential property. The review is authorised under the Dog Act 1976 (WA) (Dog Act) and the relevant provisions of that law are set out below.
Ms McLeod owns three dogs and in effect requires the Shire's approval to keep more than two dogs. The Shire has refused to give its approval, citing amenity concerns.
The legislative framework
Section 26(3) of the Dog Act provides as follows:
"(3)Where by a local law under this Act a local government has placed a limit on the keeping of dogs in any specified area but the local government is satisfied in relation to any particular premises that the provisions of this Act relating to approved kennel establishments need not be applied in the circumstances, the local government may grant an exemption in respect of those premises but any such exemption ‑
(a)may be made subject to conditions, including a condition that it applies only to the dogs specified therein;
(b)shall not operate to authorise the keeping of more than 6 dogs on those premises; and
(c)may be revoked or varied at any time."
Pursuant to the authority granted to the Shire by the Dog Act, the Shire resolved on 27 February 2001 to make the Shire of Harvey Dogs Local Law (Local Law). That law does "[place] a limit on the keeping of dogs in any specified area" within the meaning of s 26(3).
Thus, pursuant to cl 3.2 of the Local Law, the number of dogs "which may be kept on any premises" is, so far as is relevant, limited to "2 dogs over the age of 3 months". (Clause 3.2 does not apply to premises which are an approved kennel establishment ‑ which is not relevant here ‑ or in respect of which an exemption is in force under s 26(3) of the Dog Act.)
Section 26(5) of the Dog Act provides that a person who is aggrieved by the refusal of local government to grant such an exemption, or by the revocation of an exemption, may apply to this Tribunal for a review of the decision.
The parties have proceeded upon the assumption that no issue arises in relation to "approved kennel establishments" and that the sole issue for resolution is whether three dogs should be permitted to be kept on the premises. As has already been noted, Ms McLeod is at the moment entitled to keep two dogs on the premises as of right.
Background to the review
Ms McLeod resides in Lucy Victoria Avenue, Clifton Park, Australind. She applied in May of 2006 in respect of the keeping of her three registered dogs at these premises. These domestic pets were: a one year old female Jack Russell ("Beckie"); a five year old female de‑sexed Jack Russell ("Meg"); and a 13 year old Kelpie‑cross de‑sexed male ("Woofy"). On the face of it, none of these breeds appears to be the cause of any particular concern and it was not suggested otherwise by the Shire.
The matter was heard in the Shire of Harvey, and the Tribunal was assisted, in the presence of the parties, with a view of the subject premises; the immediately surrounding neighbourhood, streetscape and layout; and with a limited inspection of the three dogs in the yard of the subject premises.
At the hearing, the Council was represented by Mr J Gale, who is the Assistant Chief Executive Officer of the Shire. Ms McLeod presented her own case, assisted by her partner, Mr Puddick. Mr Puddick also gave evidence confirmatory of the applicant's evidence.
The Shire's case
The Shire advertised Ms McLeod's application in a local newspaper in May 2006 and some 33 residents received letters seeking comment on the application.
The officer's report to Council indicated that, at that stage, three objections had been received by the Shire. These objections were based upon the alleged smallness of the yard size, and were otherwise directed at the general problem of other dogs barking in the area. All of the objections were from properties located towards the rear of the applicant's residence. The officer reported that the land was zoned residential and went on to observe:
"An inspection of the property has been conducted ... Generally the report is favourable as to the condition, security, welfare and cleanliness [of the dogs and their surrounds]. The inspecting officer has recommended approval of the application, conditional on the approval lapsing on the death or disposal of any of the dogs".
Notwithstanding that report, the Council voted narrowly to refuse the application. The Council expressed its reasons as follows:
"Council considered that the keeping of three (3) dogs on the property in question was not in keeping with the amenity of the area."
The officer's recommendation proposed several conditions and these conditions are re‑asserted in these proceedings, should the Tribunal be minded to approve the application. The conditions are as follows:
"1.The exemption applies only to the dogs listed on the application and once any of the dogs are deceased, sold or otherwise disposed of, the exemption automatically lapses.
2.The exemption will automatically lapse on any offence relating to the Dog Act 1976 by the dogs or any person in charge of these dogs.
3.The property must be kept clear of all animal excreta using proper disposal methods.
4.Adequate cover and protection is available for the dogs at all times.
5.The dogs being at all times adequately confined in accordance with the Dog Act 1976.
6.Access shall be given to the Council for annual inspections or more regularly if the Council so determines.
7.The exemption may be revoked or varied at any time in a manner provided for in s 26(3)(c) of the Dog Act 1976."
As has already been indicated, the Council's case for refusal mainly revolves around the complaints or objections received from the neighbours of the applicant. These were received anonymously in the Tribunal, but as has already been mentioned, they were from neighbours located at the rear of the applicant's property.
At this point it is convenient to note that that the subject land is opposite a large park and is in a small single storey strata development on a reasonably busy feeder road that runs past that park. The subject property is on the corner of Hayward Way and is located within an "island" of six properties on or near Lucy Victoria Avenue.
The objectors' views
The first objector told the Council:
"There are several dogs kept in premises that surround our residence. Most properties surrounding us with animals [sic], the owners are absent from their premises during business hours and the dogs are in the yards. Any movement in our garden or noise within the laundry/line area attracts barking from the animals in surrounding yards.
The size of the yard and the form of the enclosures within which animals are kept should also be considered in any assessment.
The dogs left unattended are a noise nuisance sufficient that we do not wish to see formal approval granted for the existing numbers [of dogs at the subject land]."
This observation appears to be a generalised complaint about dog noise in the area.
The second complaint or observation is to the effect that the land available for the three dogs is a very small area and that it would be "cruel on 3 animals [sic]". The objector goes on to observe that "we had occasion to contact the occupiers of this unit to complain about the 2 [sic] dogs already there barking all day and well into the night ‑ sometimes after midnight". The objector observed that "[m]ost of our neighbours have 1 or 2 dogs and the noise is sometimes unbearable". The objector added that the "standard of fencing in this area is such that it is lower than I believe is the standard of today". Finally, it was submitted that:
"I cannot see any reason for anyone to want to keep more than 2 dogs in an urban area unless their intention is to breed from them which then becomes a commercial enterprise and should be properly conducted by appropriate kennelling."
The next objector identifies the plight of a shift worker who says that he or she has "noticed the problem of barking dogs during the working week increasing. Three dogs in a house lot are far too many, let alone a strata unit".
The final objection is as follows:
"There are several dogs kept in other premises near my residence, any increase in the number of dogs would increase the nuisance from barking by animals in surrounding yards. The yard of [the subject land] is too small."
Other evidence of the respondent
Mr Gale gave evidence to the Tribunal. He told the Tribunal that there had never been any complaints or objections received in relation to the subject land or premises prior to the consultative process. He did not intend to call any of the objectors and he said that they had not been approached to give evidence in the matter. He gave evidence that one of the rangers had been out to see the dogs and had inspected the property and had actually handled the dogs on the particular day of the officer's visit.
Mr Gale properly conceded that, based on the inspection of the ranger, there was ample room for three dogs at the subject premises.
The applicant's case
Ms McLeod provided a written statement to the Tribunal drawing attention to the 278 square metres of yard and open space which is currently available for the three dogs. She also drew the Tribunal's attention to the officer's observations and to the recommendations concerning the conditions, security, cleanliness and welfare of the dogs on the property.
The Tribunal on its short visit to the premises did not observe anything inconsistent with the officer's report.
Two photographs of the dogs were tendered by the applicant and they show two relatively small dogs and a medium sized dog. The larger dog is obviously quite old.
Ms McLeod said:
"None of these dogs bark during the day or night, unless someone walks past the front gate and says something, or we are about to go for our morning or evening walk and they get excited for a short time."
Ms McLeod did concede that on one occasion she had received a complaint about barking from her dogs when she had to go to Perth at short notice and could not get kennelling arranged before she had to depart. She had to leave the dogs in the care of her sister to feed. The applicant's sister could not stay with the dogs all day at the unit, so the youngest dog, she believes, fretted and "obviously she did some barking".
Finally, Ms McLeod said in her written evidence that if her application was refused then she would have to "put one of my dogs down as I have no‑one to re‑locate it to". It was conceded in her oral evidence to the Tribunal that the oldest dog - and the quietest and least boisterous - would be the likely victim of such a course of action.
Ms McLeod also gave some other supplementary oral evidence to the Tribunal in response to questions from the Tribunal. That evidence may be summarised as follows:
•The dogs originally came from a one acre block in South Australia, in fact from a farming area. Ms McLeod's view was that the dogs' behaviour, once they had settled down, had not altered in any material way following their move to a smaller property.
•The dogs are exercised every day in the park opposite the subject land.
•The subject land has solid fences but with two front gates at the front of the property constructed with or containing slats. Ms McLeod considered that there could be the occasional bout of barking when pedestrians walked past those gates.
•Most of the time there is somebody at home; either Ms McLeod or her partner or Ms McLeod's teenage son.
•Two of the dogs are registered with a local veterinary clinic.
•In January 2006, Ms McLeod had inquired about citronella collars and the like to control some barking when the dogs first moved to the new premises, but that she did not pursue this course when the dogs settled down.
The applicant was also asked to respond to the various objections that the Shire had received. Ms McLeod submitted that the first objection was just a generalised complaint about noise.
In respect of the second objection, Ms McLeod (and indeed the respondent) rejected any suggestion that there could be any element of cruelty in the applicant's current arrangements with regard to the dogs in the yard.
In relation to the allegation that Ms McLeod was contacted about noise from barking dogs, Ms McLeod conceded that that had happened, when the complainant had left a note in her letterbox. Ms McLeod emphasised that this had happened on only one occasion. Ms McLeod also suggested that although the complaint was anonymous, it was possible that the objectors themselves owned a dog, but this matter was not pursued.
The next objection was from a shift worker. Mr Puddick, who works in interstate haulage, said that he had been home "all of last week" and that he did not find the area inundated with the noise of barking dogs. Again, Ms McLeod submitted that this was a generalised complaint. Again, Ms McLeod rejected any suggestion that her strata lot was too small to accommodate her dogs.
Ms McLeod drew the Tribunal's attention to the fact that no actual complaints had been received by the Shire and that insofar as the objections could be characterised as complaints, this had only come about because her neighbours were invited to make submissions on the matter. In any event, it was a small number of objections in response to the 33 letters sent out by the Council.
Conditions
The Tribunal turns to the conditions that have already been mentioned above. The applicant indicated agreement with such conditions and agreement to a further condition suggested by the Tribunal to the effect that the applicant was to take all reasonable steps to prevent the subject dogs from becoming a nuisance within the meaning of the Dog Act.
Section 38(2)(b) of the Dog Act provides that a dog shall be taken to be a nuisance if:
"[It] creates a noise, by barking or otherwise, which persistently occurs or continues to a degree or extent not normally habitual in dogs and has a disturbing effect on the state of reasonable physical, mental, or social well‑being of a person."
The evidence received by the Tribunal to date indicates that none of the dogs is a "nuisance" by reference to that standard.
The application of the law
The Tribunal turns to consider the relevant authorities.
In Pinnock & Anor and Shire of Mundaring [2005] WASAT 13, Senior Member Raymond said, at par [15]:
"The purpose of [the Dog Act] is to minimise any nuisance associated with the keeping of dogs and to ensure appropriate licensing of kennel establishments."
In that case, the Tribunal set aside the decision of the Shire of Mundaring partly because the Shire had misunderstood the regulatory regime it was administering, but also on the basis that there was "not the slightest indication of the dogs causing any nuisance of any kind" (Pinnock at par [16]). The Tribunal went on to say, at par [19]:
"In this case, the dogs have been de-sexed and there is no risk of breeding occurring, which could be a source of nuisance. There is no evidence of any complaint concerning the behaviour of the dogs. The exemption requires the grant of an indulgence in respect of only one dog. The dogs are well accommodated and are effectively contained so there is little risk of wandering onto adjoining properties. The council's officer reported that the health and welfare of the dogs and their living conditions were acceptable. There is therefore nothing to point to any risk of behavioural problems causing any nuisance."
In conclusion, Senior Member Raymond observed that (at par [20]):
"If a power exists to consider an exemption, which it does, it would be difficult to imagine a less controversial application."
In Robins & Anor and Shire of Harvey [2005] WASAT 28, Member De Villiers said, at par [20]:
"It is understandable that a local government would require a well-motivated proposal prior to it granting permission for more than two dogs to be kept on a premises. The local government also has to take several factors into account for example the size and location of the property, fencing, shade, previous complaints from neighbouring residents, other public inputs and the risk that a precedent may be established that in time may lead to further complications, abuse or unhappiness. The council also has to consider factors that may justify the making of an exemption such as the particular circumstances of the applicants, the lack of previous complaints, the breed, the applicant's experience in handling dogs, and the motivation supporting the application for exemption."
Applying those principles to the evidence in that case, the Tribunal set aside the decision of the Shire of Harvey and substituted a decision permitting three named dogs to be kept at residential premises in MacQuarie Drive, Australind.
In this matter, the Tribunal is satisfied that in the circumstances of the case it is appropriate to permit the three named dogs to be kept at the subject premises. In particular, the Tribunal relies upon the absence of past specific complaints (except for one occasion, which has been adequately explained); the nature, size and ages of the dogs; the layout of the subject land; and such matters as the dogs' accommodation, care and exercise regime.
In short, the Tribunal accepts the evidence of the applicant and her partner, almost all of which in any event was not contested by the respondent.
There will be an order setting aside the decision under review and substituting for that decision a decision permitting the three dogs to reside on the subject land subject to the conditions set out hereunder.
The Tribunal should add that there is no evidence to suggest that any strata by-law (if any) has been breached in relation to the keeping of dogs on the subject land and the Tribunal has assumed that matter, if and so far as it might have been relevant, in the applicant's favour.
Future cases under the Dog Act
The Tribunal has now published three decisions in the area of dog exemptions and it is respectfully suggested that sufficient general indicia have now emerged to indicate the type of considerations that primary decision‑makers (that is, local authorities) ought to be having regard to in this regulatory area. Thus, in the ordinary case, the Tribunal would expect any respondent Council to structure both their primary decision-making and their subsequent case in the Tribunal around such indicia.
Where a respondent has not done so it might be a proper case for the matter to be initially sent back for reconsideration by the local authority under s 31 of the State Administrative Tribunal Act 2004 (WA).
Order
The decision under review is set aside, and in substitution therefore there will be a decision as follows:
"Pursuant to s 26(3) of the Dog Act 1976 (WA) an exemption is granted to the applicant upon the following conditions:
1.The exemption applies only to the three named dogs listed on the application form and once any of the dogs are deceased, sold or otherwise disposed of, the exemption ceases to have effect.
2.The exemption will cease to have effect on the date of any conviction for an offence relating to the Dog Act 1976 in respect of either the dogs, or any person in charge of those dogs.
3.The subject property identified in the application must be kept clear of all animal excreta using proper disposal methods.
4.Adequate cover and protection is to be available for the dogs at all times.
5.The dogs are to be adequately confined in accordance with the Dog Act 1976.
6.Access is to be given to the Council for an annual inspection of them or more regularly if the Council so determines.
7.For good cause, the exemption may be revoked or varied at any time in the manner provided for in s 26(3)(c) of the Dog Act 1976.
8.The exemption will also cease to have effect whenever any one or more of the dogs becomes a nuisance within the meaning of the Dog Act 1976, whether established by conviction in a court or otherwise."
I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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