Pinnock & Anor and Shire of Mundaring

[2005] WASAT 13

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: DOG ACT 1976

CITATION:   PINNOCK & ANOR and SHIRE OF MUNDARING [2005] WASAT 13

MEMBER:   MR C RAYMOND (SENIOR MEMBER)

HEARD:   ON PAPERS

DELIVERED          :   23 FEBRUARY 2005

FILE NO/S:   CC 149 of 2005

BETWEEN:   RICHARD PINNOCK

EILEEN BOLTEN
Applicant

AND

SHIRE OF MUNDARING
Respondent

Catchwords:

Administrative law ­ Dog Act 1976 ­ Review under s 26(5)(b) of decision refusing to grant exemption

Legislation:

Dog Act 1976 (WA) s 6(1), s 6(2), s 6(3), s 26(3)

State Administrative Tribunal Act 2004 (WA) s 11, s 167

State Administrative Tribunal Regulations 2004 (WA) reg 28

Result:

Application successful
Conditions imposed

Category:    B

Representation:

Counsel:

Applicant:     Self Represented

Respondent:     Self Represented

Solicitors:

Applicant:    

Respondent:    

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

Nil

Case(s) also cited:

Nil

MR C RAYMOND (SENIOR MEMBER):

REASONS FOR DECISION

The Application

1. The applicants, by letter dated 29 October 2004, appealed a decision of the Shire of Mundaring refusing their application for an exemption from a local by-law limiting the number of dogs to two which could be retained by them on their property at 4 Selkirk Road, Mundaring, in the State of Western Australia.

Transfer of Proceedings

1. On 1 January 2005, The State Administrative Tribunal Act 2004 ("SAT Act") came into force. By virtue of s 167 of that Act, this matter was transferred to the State Administrative Tribunal. I have been nominated to constitute the Tribunal pursuant to s 11 of the SAT Act.

2. In accordance with the transitional provisions of the State Administrative Tribunal Regulations 2004 (reg 28), the matter was taken to commence in the Tribunal.  Further, the Tribunal may have regard to any record of the former adjudicator, and I have had regard to the record in relation to this matter.

Nature of Review

1. As the nature of the review is by way of a hearing de novo, the Tribunal is not confined to the matters that were before the decision‑maker, and may take into consideration new material whether or not it existed at the time the decision was made.  The purpose of the review is to produce the correct and preferable decision at the time of the review decision.

2. A directions hearing was held on 10 February 2005.  The applicants appeared in person and there was no appearance for the respondent.  The Tribunal received information from the applicants at the directions hearing concerning the circumstances in which the need to apply for an exemption arose and also received photographs of the applicants' dogs and the environment in which they are kept.

Background

1. The applicants met each other approximately 12 months prior to October 2004 and when they commenced living together they brought with them their respective dogs.  The applicants purchased the property at Selkirk Road in June 2004.

2. At the directions hearing on 10 February 2005 the applicants advised the Tribunal that they had never received any complaint concerning their dogs.  The need to apply for an exemption because they had one dog more than the number permitted under the local council by‑law became known to them when an application was made to register the dogs at the shire office.

3. According to information provided by the Shire of Mundaring, as set out in a letter dated 12 November 2004 addressed to a Mr Fowler at the Department of Local Government and Regional Development, the local law provides that if a property is less than 10,000 square metres of land, the owner or occupier may keep a maximum of two dogs.  If the property is over 10,000 square metres but less than 20,000 square metres of land, the owner or occupier may keep a maximum of three dogs.  If the property is over 20,000 square metres of land, the owner of occupier may keep a maximum of four dogs.

4. The applicants' property is 2,166 square metres of land which means that they need to apply for an exemption, which it was in the power of the shire to grant pursuant to s 26(3) of the Dog Act 1976 ("the Act").

5. The dogs in question are a female silky terrier, aged two years, and two male golden retrievers, both aged six years.  All of the dogs have been de‑sexed.

6. The letter further advises that no letter of objection was received from adjoining neighbours.  In the event that the appeal was upheld, the shire requested that conditions be imposed namely:

   1.The dogs not be used for breeding purposes.

   2.If any of the dogs die or are given away, they are not to be replaced in order to reduce the number to that permitted under the by‑law for this property.

   3.Should any complaints be received, the approval be reviewed in the light thereof.

7. It appears that the application for exemption was heard at a council meeting on 28 September 2004.  A document, which appears to be a briefing note for council, records that a ranger had inspected the applicants' property and reported that it had an effective containment area for the dogs, and that the health and welfare of the dogs and their living conditions were acceptable.  The document contains an officer recommendation that the application be refused.  Also incorporated was a committee recommendation apparently dated 9 September 2004.  It was in terms that the application be refused as the property is less than 10,000 square metres in area.  Further that the applicants should be provided with a period of six months from 28 September 2004 to reduce the number of dogs from three dogs to two dogs and that the applicants provide written confirmation of the registration details of the two dogs to be retained.

Consideration

1. It is apparent from the documentation provided that neither the officer of the council, nor the council's officers who investigated the matter, nor the sub‑committee which made the recommendation to council, gave any consideration to the criteria on which any exemption should be granted.  There was simply a strict application of the local law.  This represents an unfortunate deficiency in procedure because it results in any application for an exemption being illusory, and is likely to result in unnecessary appeals to this Tribunal.

2. Section 6 of the Act provides by subs (2) the power by which local governments may limit the number of dogs over the age of three months, or the number of such dogs of any specified breed or kind, that may be kept on premises situated in a specified area to which those local laws apply unless those premises are licenced as an approved kennel establishment or are exempt.  Sub-section (3) empowers a local government to grant an exemption.

3. The purpose of the law is to minimise any nuisance associated with the keeping of dogs and to ensure appropriate licensing of kennel establishments.

4. In this case, there is not the slightest indication of the dogs causing any nuisance of any kind.

5. Sub-section 6(1) of the Act, which is within Pt V thereof, provides that the provisions of that Part shall not operate to prevent the keeping on any premises of two dogs over the age of three months, and the young of those dogs under that age.  That means that up to two dogs can be kept on small urban residential lots.

6. While the council is entitled to determine the area of land required to keep a prescribed number of dogs, subject to s 6(1) above, it is necessary to take into account, when considering an application for an exemption, that the areas prescribed by council are large areas, in the context of modern living. It is necessary that some consideration be given to those features of each particular case which indicate whether or not there is any risk of a nuisance being created.

7. 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.

8. If a power exists to consider an exemption, which it does, it would be difficult to imagine a less controversial application.  The decision of the council should be set aside and an order will issue to that effect, substituting for the decision, an order granting the application for exemption.

9. It remains to consider the conditions which the shire seeks to have imposed.  The first condition is not necessary because the dogs have been de‑sexed.  The second condition is reasonable, although it should be expressed in the singular so as to provide that if any one of the dogs die or is given away, the dog not be replaced in order to reduce the number to that permitted under the by‑law for this property.  The third condition sought is that should any complaints be received, the approval ie grant of the exemption, be reviewed in the light of the complaint.  It is also reasonable and achieves a balance between the applicants' interests and any neighbour who may be affected by errant behaviour in the future.  The applicants indicated at the directions hearing that they had no difficulty with any of the conditions sought by the shire.

10. Accordingly, the Tribunal makes the following orders:

11. The decision of the respondent apparently made on 28 September 2004 refusing the applicants' application for the grant of an exemption from the local by‑law restricting the number of dogs which the applicants are entitled to keep on their property known as 4 Selkirk Road, Mundaring and permitting the keeping of three dogs thereon, is set aside and the following decision substituted:

    "That:

    1.The application to keep three dogs at 4 Selkirk Road, Mundaring is granted;

    2.If any one of the applicants' dogs dies or is given away, the dog is not to be replaced, in order to reduce the number to that permitted under the by‑law for this property, namely two dogs;

    3.Should any complaints be received concerning the applicants' dogs, this exemption shall be reviewed in the light of any such complaint."

I certify that this and the preceding six pages comprise the reasons for decision of the Tribunal.

___________________________________

C Raymond
Senior Member