MIANICH and SHIRE OF NANNUP
[2015] WASAT 67
•17 JUNE 2015
MIANICH and SHIRE OF NANNUP [2015] WASAT 67
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 67 | |
| DOG ACT 1976 (WA) | |||
| Case No: | CC:170/2015 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR J JORDAN (MEMBER) | 17/06/15 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is allowed The decision of the Shire of Nannup is set aside and replaced with the decision that the three dogs must be kept within the Shire in accordance with the requirements of the Dog Act 1976 (WA) for keeping dangerous dogs | ||
| B | |||
| PDF Version |
| Parties: | DAVID MIANICH SHIRE OF NANNUP |
Catchwords: | Dog Act 1976 (WA) Declaration by City of Mandurah that three dogs are dangerous Dogs registered in City of Mandurah – Dog owner moves to Shire of Nannup Application for review of decision by Shire refusing to allow the dogs to be kept within the district Power to make such a decision Administration and enforcement of Dog Act Registration of a dog having effect throughout the State Turns on own facts |
Legislation: | Dog Act 1976 (WA), s K(3), s 9, s 10AA, s 15(3A), s 16, s 16(3), s 16(3)(d), s 16(5), s 17, s 17A, s 17A(2), s 33E(1), s 33GA, s 33GE, s 33J, s 33K Interpretation Act 1984 (WA) |
Case References: | Nil |
Summary | This matter was the review of a decision by the Shire of Nannup to refuse to allow three dogs declared dangerous to reside in its district. ,The three dogs had been kept in the City of Mandurah where they were registered and had been declared dangerous under the Dog Act 1976 (WA). The declaration required the owner to keep and control the dangerous dogs in accordance with the provisions of the Dog Act 1976. ,The dog owner decided to move to a house in the Shire of Nannup, with the dogs, and informed the Shire as required, under the Dog Act 1976 provisions for keeping dangerous dogs. ,The Shire, in deciding to refuse to allow the dogs to reside in the district, referred to its power to refuse to effect the registration of the dogs, and a lack of resources to administer and enforce those provisions of the Dog Act 1976 relevant to the keeping of dangerous dogs. ,The Tribunal found that because, under the Dog Act 1976, a valid registration in one district has effect throughout the State, no fresh applications for registration were required to be effected. Noted also was that no formal steps had been taken by the Shire to cancel the registration of the three dogs. The Tribunal further found that it could not support a decision that appears to be the local government choosing not to administer and enforce certain sections of the Dog Act 1976 by saying it was not prepared to allow certain dogs to reside in the district, even where those dogs have valid registrations and are kept in accordance with the provisions of the Dog Act 1976.,The Tribunal upheld the application and replaced the Shire's decision with a decision that the dogs be kept in accordance with the Dog Act 1976 requirements for the keeping of dangerous dogs. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : DOG ACT 1976 (WA) CITATION : MIANICH and SHIRE OF NANNUP [2015] WASAT 67 MEMBER : MR J JORDAN (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 17 JUNE 2015 FILE NO/S : CC 170 of 2015 BETWEEN : DAVID MIANICH
- Applicant
AND
SHIRE OF NANNUP
Respondent
Catchwords:
Dog Act 1976 (WA) Declaration by City of Mandurah that three dogs are dangerous Dogs registered in City of Mandurah – Dog owner moves to Shire of Nannup - Application for review of decision by Shire refusing to allow the dogs to be kept within the district Power to make such a decision Administration and enforcement of Dog Act - Registration of a dog having effect throughout the State - Turns on own facts
Legislation:
Dog Act 1976 (WA), s K(3), s 9, s 10AA, s 15(3A), s 16, s 16(3), s 16(3)(d), s 16(5), s 17, s 17A, s 17A(2), s 33E(1), s 33GA, s 33GE, s 33J, s 33K
Interpretation Act 1984 (WA)
Result:
The application for review is allowed
The decision of the Shire of Nannup is set aside and replaced with the decision that the three dogs must be kept within the Shire in accordance with the requirements of the Dog Act 1976 (WA) for keeping dangerous dogs
Summary of Tribunal's decision:
This matter was the review of a decision by the Shire of Nannup to refuse to allow three dogs declared dangerous to reside in its district.
The three dogs had been kept in the City of Mandurah where they were registered and had been declared dangerous under the Dog Act 1976 (WA). The declaration required the owner to keep and control the dangerous dogs in accordance with the provisions of the Dog Act 1976.
The dog owner decided to move to a house in the Shire of Nannup, with the dogs, and informed the Shire as required, under the Dog Act 1976 provisions for keeping dangerous dogs.
The Shire, in deciding to refuse to allow the dogs to reside in the district, referred to its power to refuse to effect the registration of the dogs, and a lack of resources to administer and enforce those provisions of the Dog Act 1976 relevant to the keeping of dangerous dogs.
The Tribunal found that because, under the Dog Act 1976, a valid registration in one district has effect throughout the State, no fresh applications for registration were required to be effected. Noted also was that no formal steps had been taken by the Shire to cancel the registration of the three dogs. The Tribunal further found that it could not support a decision that appears to be the local government choosing not to administer and enforce certain sections of the Dog Act 1976 by saying it was not prepared to allow certain dogs to reside in the district, even where those dogs have valid registrations and are kept in accordance with the provisions of the Dog Act 1976.
The Tribunal upheld the application and replaced the Shire's decision with a decision that the dogs be kept in accordance with the Dog Act 1976 requirements for the keeping of dangerous dogs.
Category: B
Representation:
Counsel:
Applicant : In Person
Respondent : Ms T Bishop (Acting as Agent)
Solicitors:
Applicant : N/A
Respondent : Shire of Nannup
Case(s) referred to in decision(s):
Introduction
1 The Tribunal issued its decision on 7 March 2014 upholding the application for review and replacing the decision of the Shire of Nannup (Shire) with a decision granting conditional approval for three dangerous dogs to be kept in the Shire. Following are the reasons for that decision.
2 The applicant, Mr David Mianich, is the owner of three male Staffordshire bull terriers named Rex, Leroy and Bronson (also known as Charlie), registered with the City of Mandurah under the Dog Act 1976 (WA) (Dog Act).
3 On 15 January 2015 the City of Mandurah declared Rex, Leroy and Bronson to be dangerous, as provided for under s 33E(1) of the Dog Act. The declaration letter informed Mr Mianich of the terms and conditions under which the three dangerous dogs must be kept, as provided for under s 33GA, s 33GE, s 33J and s 33K of the Dog Act. This dangerous dog declaration remains in place for the life of the three dogs unless at some future time it is successfully reviewed.
4 Mr Mianich, with his partner Ms Alana Rainer, then decided to sell their White Hills, Mandurah home and move to a rural smallholding at Lot 4 Leschenaultia Drive, Jalbarragup in the Shire.
5 Mr Mianich informed the Shire of his intention to move to Leschenaultia Drive with the three dangerous dogs, as required by s 33K(3) of the Dog Act.
The Shire's decision
6 On 30 January 2015 the Shire wrote to Mr Mianich informing him that the Shire had:
• consulted with rangers at the City of Mandurah and the City of Busselton;
• consulted with the Department of Local Government;
• conducted a review of paperwork relating to the unprovoked attack by the dogs; and
• considered the impact that minimal ranger coverage would have on this situation.
7 The Shire informed Mr Mianich that, on review of these factors and in the interest of public safety, it had decided it was not prepared to allow the three dogs to reside within the Shire. This decision was issued at officer level under delegation. The full Council resolved to 'endorse the actions taken to date by the officers' at its ordinary meeting in February 2015.
8 Mr Mianich then filed an application for review of the Shire's decision.
The issue
9 The issue in this matter is whether the Shire's decision, not to allow the dogs to reside within the Shire is to be set aside.
Discussion
10 In the officer's report of 16 February 2015 to the Council the comment was made that Mr Mianich's residence is not within a built-up area and is surrounded by natural bush. The lot is 2.4368 hectares and the residence (including the dog enclosure) is situated in the rear right-hand corner of the block, all of which should help to prevent the dogs from having exposure to neighbouring properties and the general public.
11 The officer's report went on to state, however, that the property backs onto Blackwood River, and access to the property could be found via this route both by people walking along the river unaware of the nature of the dogs or as a result of the dogs exiting the property. Fencing surrounding the boundary of the property is not sufficient to keep the dogs in, should they wish to escape.
12 The officer's recommendation in the report stated:
That unless clear guidelines can be obtained from the State Administrative Tribunal in relation to how the dogs can be kept within the confines of Lot 4 Leschenaultia Drive, Jalbarragup then s 17 of the Dog Act 1976 be evoked. This would mean that the dogs need to be removed from the property within 14 days.
13 In its letter to Mr Mianich on 30 January 2015 the Shire acknowledged that there had been significant expense by him in trying to reach compliance with the Dog Act requirements for keeping dangerous dogs.
14 The Shire considered, however, that there were valid reasons for its decision and these can be summarised as follows:
• The alleged attack by the dogs was on a ten-year-old minor and it would have been significantly worse had adults not been around to remove the dogs from the child.
• The attack was the result of three dogs attacking in a pack.
• It is reasonable to assume that this pack mentality would be similar if an opportunity was to arise at any point in the future.
• The Shire does not have a ranger services department within its boundaries. Rangers are contracted from the City of Busselton. If an attack were to occur, there would be a significant time delay in getting rangers to attend the scene.
This also means that the Shire is not able to continue to monitor the dogs at a level warranted for dogs that had previously attacked and had been declared dangerous. It is of major concern to the Shire that this could not be undertaken at a sufficient level. As a result, tolerance levels to housing dogs of this nature needs to be reduced to zero.
• The area in which the dogs are housed is isolated. If an attack were to happen at this location, there would be a significant time delay in getting medical attention to the victim.
15 In her report of 16 February 2015 the Shire officer said that the ranger from the City of Busselton inspected the property on 6 February 2015 and noted that the dog enclosure was of high quality. The Shire added a further comment in its letter to the Tribunal of 19 March 2015:
While they have built a compound that can secure the dogs when [Mr Mianich is] away from the property, there is still an issue relating to containing the dogs on a day to day basis. On the two visits to the premises, on the first instance all three dogs were unsecured and roaming freely and on the second two were in a vehicle and the third was free. The compound was still under construction however conversations with Mr Mianich seemed to indicate that the compound is to be used for when the dogs are left alone on the property or if someone is visiting the property.
Therefore we do need to address how the dogs are to be contained on a day to day basis. Our concerns continue to lie with our inability, based on our size, structure and capabilities of our organisation, to ensure that the public safety of other community members will not be compromised as a result of allowing these dogs to reside within our locality. This is the underlying factor for the actions taken on our behalf.
16 Mr Mianich's submissions included his version of the attack that caused the dogs to be declared dangerous. He said that he has put in place on the property in Leschenaultia Drive all those steps necessary under the Dog Act to house the three dangerous dogs, and he is fully aware of his responsibilities for managing the dogs when they are not in the yards. This, he said, should preclude any similar circumstances arising again.
17 Mr Mianich filed with the Tribunal photographs illustrating yards enclosed in a fine wire mesh at least 1.8 metres high with a self-closing lockable gate. One yard, which is effectively under the high set house, is complete, and a second yard is very close to completion.
Registration of the three dogs
18 The Shire's letter said that the decision had been made as per s 17A of the Dog Act, which states:
17A. If no application for registration made
(1) In this section
dog means a dog
…
(b) in respect of which an application for registration has not been made.
(2) A local government may give written notice to the owner of a dog that the dog cannot be registered by the local government because
…
(e) the dog is a dangerous dog.
17. Refusal or cancellation of registration
(1) Where a local government refuses to effect or renew the registration of a dog, or cancels a registration or gives a written notice under section 17A(2), the applicant or the registered owner or owner of the dog, as the case may be, may apply to the State Administrative Tribunal for a review of the decision.
20 Although not cited by the Shire, the Tribunal considers relevant to the discussion s 16(3) of the Dog Act, which states:
The local government may direct the registration officer to refuse to effect or renew the registration of a dog, and may direct that the registration of a dog shall be cancelled, if
…
(d) the dog is a dangerous dog.
21 The Shire, in its response, referred to an exchange of emails it had with the acting senior ranger in the Shire of Busselton, Mr James Wanless. Mr Wanless reported that he had spoken with Ms Darrelle Merritt from the Department of Local Government and Communities who was said to have confirmed that Nannup can refuse registration of the dogs under s 16(3)(d) of the Dog Act. The Shire would need to provide the dog owner with a notice and the reasons the registrations are being refused.
22 Also provided was a copy of an email from Ms Merritt to Mr Wanless which states that following a discussion 'it appears that you can cancel the registration of a dangerous dog under s 16(3)(d)'.
23 In its submissions to the Tribunal, the Shire stated that there was no definition for the word 'effect' in either the Dog Act or the Interpretation Act 1984 (WA) and therefore the definition of this word needs to come from the natural meaning of the word. Based on this, the Shire, citing the Oxford English Dictionary, said its understanding of the word was:
Effect: to the state of being operative.
verb 1: bring about; accomplish
verb 2: cause to exist or occur
24 In s 16(3) and s 17 of the Dog Act, 'effect' is part of the same sentence which includes '… refuse to effect or renew the registration for the dog'. The Tribunal considers that, consistent with the principles of statutory interpretation as cited at verb 1 and verb 2 above, the meaning of the word 'effect' requires a distinct and clear administrative action by the Shire to bring about or accomplish or cause to exist or occur, the actual registration of a dog so that a registration certificate could be issued. This would be an action different from 'renewing' an existing registration that is to lapse, as provided for in s 16(3) and s 17 of the Dog Act.
25 The Tribunal notes that the Shire has not given Mr Mianich any written notices under s 17A(2) of the Dog Act about the registration of the three dogs.
26 Sections 16 and 17 of the Dog Act also provide that a registration officer of the local government may direct that the registration of a dog shall be cancelled. If a local government cancels a registration of a dog, the owner may apply to the Tribunal for review of that decision under s 17 of the Dog Act. The Tribunal notes, however, that the Shire has not given any notice to Mr Mianich that it has cancelled the registrations of the three dogs.
27 The Tribunal notes that the Dog Act, at s 16(5), states:
The registration of a dog under this Act has effect throughout the State notwithstanding that the dog may be removed to another district of the State.
28 There was no dispute that the three dangerous dogs were registered in the City of Mandurah. Notwithstanding the comments of Mr Wanless and Ms Merritt and in the absence of being able to examine them of their understanding of the circumstances, the Tribunal has found that Mr Mianich had not made, nor was he required to make, an application to register afresh the three dangerous dogs in the Shire because they have valid registrations under the Dog Act from the City of Mandurah.
29 The Tribunal has therefore concluded that the Shire cannot rely on s 16, s 17A(2) and s 17 of the Dog Act (that grant power to 'effect or renew' the registration of a dog) to refuse to allow the three dogs to be kept at Leschenaultia Drive.
30 As provided in s 16(5) of the Dog Act, the registration of the three dogs would continue to be operative if the dogs were removed to Leschenaultia Drive. The Tribunal is of the view that Mr Mianich's obligation in relation to the three dangerous dogs is only that he inform the City of Mandurah and the Shire, so that they can update their respective records of where the three dangerous dogs are kept.
31 As the three dogs have been declared dangerous, the valid registrations would now expire on 31 October 2015, as provided at s 15(3A) of the Dog Act. The Shire may also look to issue replacement registration tags. The Shire can, of course, consider whether to renew the registration of the three dogs when their current registrations expire on 31 October 2015.
Administration of the Dog Act
32 In support of its decision, the Shire also submitted that:
… while the owners have not tried to register within this Local Government district, based on the fact that the dogs are now declared Dangerous Dogs we cannot allow them to be housed within the district. The reasons for reaching this decision are based around the Shire of Nannup not having the capacity to monitor all of the prescriptive measures required under the Act to allow dogs of this class to be kept.
33 At the request of the Tribunal, the Shire provided information on how it enforces the requirements of the Dog Act and its Dog Local Laws on a daytoday basis. This advice included the following:
The Shire of Nannup has in place a Memorandum of Understanding between the City of Busselton (the City) and ourselves that states that the City will supply ranger services to the Shire of Nannup on an as needs basis.
This works well with any planned activities that are required and any large complaints received. However this arrangement has shortfalls which relate mainly to time delays in actioning these works as a result of time pressures and outstanding jobs within the City of Busselton. It is not unusual for there to be a 7+ day delay between a request being placed with the ranger arriving in Nannup to complete the task. An example that can be supplied relates to a dog attack which resulted in another dog's death. Although this was a serious matter and victim statements were needed, [r]angers could not attend until 7 days after the incident.
It is important to note, that no employee of the Shire of Nannup [has] any formal training in relation to animal handling or ranger services.
…
Therefore we do need to address how the dogs are to be contained on a daytoday basis. Our concerns continue to lie with our inability, based on our size, structure and capabilities of our organisation, to ensure that the public safety of other community members will not be compromised as a result of allowing these dogs to reside in our locality. This is the underlying factor for the actions taken on our behalf.
34 In Western Australia, statutes set out the powers of local governments and what geographical area, or district, each local government is responsible for. At s 9 of the Dog Act, it states:
It shall be the duty of a local government within its district to administer and enforce the provisions of this Act …
35 At s 10AA of the Dog Act, the local government, by an absolute majority, can delegate to its chief executive officer any power or duty of the local government under the Act and, in turn, the delegation may expressly authorise the delegate to further delegate the power or duty.
36 It is established principle that a local government, in the absence of a power to do so, may not decide to only be responsible for certain sections of a statute; in this instance the Dog Act. The allocation of resources does not provide a basis for the Shire to determine that it is not willing or able to administer and enforce certain provisions of the Dog Act; in this instance the provisions for the control of dangerous dogs.
37 The Tribunal would acknowledge that dangerous dogs are of concern and must be controlled; hence, the extensive provisions of the Dog Act in respect of the declaration and keeping or destroying of dangerous dogs. A breach of the provisions for keeping dangerous dogs may have life-threatening consequences, and serious sanctions do apply. If a dangerous dog has not been ordered to be destroyed, then a dog owner is directed to keep dangerous dogs in compliance with the provisions of the Dog Act.
38 Mr Mianich provided photographic evidence of the physical changes being made to comply with the dangerous dog provisions of the Dog Act, and the Tribunal has proceeded on the basis that Mr Mianich is now fully aware of his obligations and responsibilities in this regard.
39 The Tribunal further considers the Shire has statutory responsibilities it is obliged to fulfil, and this includes administering and enforcing all the provisions of the Dog Act. The Tribunal cannot endorse a decision that it considers to be a local government selecting which provisions of the Dog Act it wishes to be responsible for, simply by saying that it will not allow certain dogs that have valid registrations from being kept in the district, even where the dogs are kept in accordance with the provisions of the Dog Act.
40 The Tribunal has therefore determined that the application for review be upheld and the dogs be allowed to be kept at Mr Mianich's Leschenaultia property if kept and managed strictly in accordance with the requirements of the Dog Act.
Orders
1. The application for review is allowed.
2. The decision of the Shire of Nannup that it is not prepared to allow the three dangerous dogs, Rex, Leroy and Bronson to be kept within the Shire is set aside and is replaced with the decision that the three dogs must be kept in accordance with the requirements of the Dog Act 1976 (WA) for keeping dangerous dogs as set out in the letter dated 15 January 2015 from the City of Mandurah to Mr David Mianich, now of Lot 4 Leschenaultia Drive, Jalbarragup.
I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
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