Robins & Anor and Shire of Harvey

[2005] WASAT 28

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: DOG ACT 1976 (WA)

CITATION:   ROBINS & ANOR and SHIRE OF HARVEY [2005] WASAT 28

MEMBER:   DR B DE VILLIERS (MEMBER)

HEARD:   DECIDED ON PAPERS

DELIVERED          :   15 MARCH 2005

FILE NO/S:   CC 202 of 2005

BETWEEN:   PAUL ROBINS

First Applicant

MICHELLE ROBINS
Second Applicant

AND

SHIRE OF HARVEY
Respondent

Catchwords:

Keeping dogs - Exemption from restrictions

Legislation:

Dog Act 1976 (WA), Part V,s 26(1), s 26(3), s 26(5)(b)

State Administration Tribunal Regulations 2004 (WA), reg 28

State Administrative Tribunal Act 2004 (WA), s 7, s 11(1), s 18(1), s 29(3), s 29(5), s 167(4)(b)

Result:

In terms of s 29(3) of the SAT Act I order as follows:

1. The decision dated 26 October 2004 by the council not to grant an exemption for the applicants to keep three dogs, is set aside.

2. The applicants may keep the three dogs the subject of their application at 14 MacQuarie Drive, Australind subject to the following conditions:
   a)      The exemption applies only to the dogs listed on the application (Georgie, Sunni and Crystal) and once any of the dogs are deceased, sold or otherwise disposed of, the exemption shall automatically lapse.
   b)     The exemption shall automatically lapse on any offence relating to the Dog Act 1976 by either dogs or any person in charge of the dogs.
   c)      The applicant provides written confirmation to the council within 30 days of the date of this order that they have means to effectively confining the dogs within the property.
   d)     The property be kept clean of all animal excreta using disposal methods.
   e)      Adequate cover is available for the dogs at all times.
   f)      Access be given to the council for annual inspections or more regularly if the council so determines.
   g) The exemption may be varied or revoked in a manner provided for in s 26(3)(c) Dog Act.

Category:    B

Representation:

Counsel:

First Applicant              :     Self-represented

Second Applicant          :     Self-represented

Respondent:     Self-represented

Solicitors:

First Applicant              :     Self-represented

Second Applicant          :     Self-represented

Respondent:     Self-represented

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

Nil

Case(s) also cited:

Nil

DR B DE VILLIERS (MEMBER)

REASONS FOR DECISION

Issue

1. The first and second applicants ("applicants") is appealing a decision of the Shire of Harvey in terms of section 26(5) of the Dog Act 1976 to refuse their application to keep three dogs at their premises being 14 Macquarie Drive, Australind.

Applicant and Respondent

1. The applicants are Paul and Michelle Robins from 14 Macquarie Drive, Australind.

2. The respondent is the Shire of Harvey from PO Box 500, Harvey, WA 6220.

Application transferred to State Administrative Tribunal

1. The appeal was initially lodged with the Minister of Local Government and Regional Development on 23 November 2004.

2. The Minster had not made a determination prior to the matter being transferred to the State Administrative Tribunal.

3. The State Administrative Tribunal ("SAT") was established on 1 January 2005 pursuant to section 7 of the State Administrative Tribunal Act 2004 ("SAT Act"). On the same day this matter was transferred to SAT in terms of s 167(4)(b) SAT Act for continuation.

4. A directions hearing was held on 24 February 2005 at which Senior Member Raymond ordered for the matter to be decided on papers. The President of SAT nominated me in terms of s 11(1) SAT Act to constitute the Tribunal for purposes of determining this matter. In accordance with the transitional provisions of the State Administrative Tribunal Regulations 2004 (reg 28) the matter is therefore taken to have commenced in the Tribunal.

5. I have taken the submissions received into account in making this determination.

LEGISLATION

Dog Act, 1976

1. Part V of the Dog Act 1976 regulates the limitation as to the numbers of dogs that may be kept on a premises. Section 26(1) provides that the number of dogs that may be kept on a premises may not exceed 2 provided that the local government may grant an exemption for a greater number of dogs to be kept (s 26(3)). The local government may, in granting the exemption, determine certain conditions under which the exemption operates. 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 State Administrative 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

1. The State Administrative Act ("SAT Act") determines that in exercising its review jurisdiction the Tribunal is to deal with a matter in accordance with the SAT Act and the enabling Act – in this case the Dog Act 1976 (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. Section 29 of the SAT Act sets out the powers of the Tribunal on review and in particular that the decision of the Tribunal is to be regarded as a decision of the decision-maker (s 29(5) SAT Act).

Orders sought

1. The applicants are seeking a review of the decision by the Shire of Harvey to refuse their application to keep 3 dogs at their premises.

Applicant submissions

1. The applicants in their request for review received 23 November 2004 provided additional background information to their application to keep three dogs at their premises.  Some of the key issues they raise are:

   (a)The three boxer dogs are female, sterilised and the oldest of the dogs is 11,5 years.

   (b)The applicants are registered breeders and have been members of the canine society for 20 years.  They are not using the dogs for breeding anymore but these are the last of the breeding lines.

   (c)The dogs are a comfort to Mrs Robins and their triplets, two of whom are disabled.

   (d)The property is fully fenced with secure gates, the dogs are walked daily and there have been no complaints to the Shire about barking.

Respondent submissions

1. I have been provided with copies of the Council Minutes held on 26 October 2004 at which the application was considered.  The following summary is derived from the said Minutes.

2. The Shire of Harvey considered at its meeting on 26 October 2004 the application by the respondents to keep three dogs for purposes of "companionship".  It was noted that the notice of the application was forwarded to 29 owners/residents who surround the property and an advertisement was placed in the local newspaper the Harvey Reporter on 31 August 2004.  Members of the public were invited to comment on the application.

3. Two letters of objection were received.  Ms Narelle Perry from 14 Macquarie Drive in a letter received 29 September 2004 expressed concern that a precedent may be established whereby other residents may also seek to keep more than 2 dogs.  Mr and Mrs Mcdermott from 6 Macquarie Drive in a letter received 29 September 2004 objected "strongly" to the application.  Some of the reasons they offered were the children playing in Macquarie Drive, the risk of dogs being alone at home for long periods of time, constant barking and uncertainty of the type of dogs that would be held.

4. The Chief Executive Officer reported to the Council that there is no previous record of complaints from adjacent residents of barking, that the premises was inspected and found to be properly fenced with a good supply of water and shelter and that the applicant is a Ranger employed by the Council.  The Chief Executive Officer made a recommendation for the request to be approved subject to certain conditions namely:

   (a)the exemption only applies to the dogs listed;

   (b)the exemption be automatically withdrawn on any offence to the Dog Act;

   (c)the property be kept clean;

   (d)adequate protection and confinement is available to the dogs;

   (e)an annual inspection be carried out.

5. The Council rejected the application by a vote of 7‑6 on the basis that "it could not support this number of dogs in a residential area" and also that the "size of the lot was an issue".

6. The acting chief executive of the Shire suggested in a letter dated 17 January 2005 that if approval is granted for the three dogs to be held, that the following conditions be imposed:

   "(a)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 be withdrawn.

   (b)That the property [sic] be automatically withdrawn on any offence relating to the Dog Act 1976 by either dogs or any person in charge of the dogs.

   (c)That the property owner provides written certification to the Council that they have means to effectively confining dogs [sic] within the property.

   (d)That the property be kept clean of all animal excreta using disposal methods.

   (e)That adequate cover is available for the dogs at all times.

   (f)That a six (6) monthly inspection of the property and the dogs be carried out by a Council Ranger."

Finding

1. Although the Dog Act 1976 limits the number of dogs per property to a maximum of two, the local government may grant an exemption and impose certain conditions subject to the provisions of the Act.

2. 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.

3. The chief executive officer, after having taken into account public submissions and an inspection of the block, recommended to council that an exemption be granted subject to certain conditions. Council declined the application mainly it would seem for reasons of the size of the block.

4. The request by the applicants to keep three dogs is supported by the following considerations:

   (i)The application was widely advertised and only two objections were received.  Both the objections are from residents who are not immediate neighbours of the applicants but respectively 4 and 5 blocks removed from the applicant's premises.

   (ii)There is no record of previous complaints against the applicant regarding dogs barking, litter, harassment of children, etc.

   (iii)The applicants have an extensive background in the breeding and keeping dogs.  The dogs the subject of the application are all sterilised females and the one dog is relatively old.  The one applicant is employed by the council as a warden and one would therefore expect that he would be particularly aware of law enforcement issues.

   (iv)The personal circumstances of the applicants justify special consideration.  Note should be taken that the applicants are not seeking a general exemption to hold any three dogs, but merely to keep the dogs already in their possession.

5. I am satisfied that the applicants have made out a sufficient case for the approval to hold the three dogs on their premises to be granted.

6. In terms of s 26(5) of the Dog Act 1976 and s 29(3) of the SAT Act I am empowered to set aside the decision by the council and to substitute it with a new decision.

Orders

1. In terms of s 29(3) of the SAT Act I order as follows:

   1.The decision dated 26 October 2004 by the council not to grant an exemption for the applicants to keep three dogs, is set aside.

   2.The applicants may keep the three dogs the subject of their application at 14 MacQuarie Drive, Australind subject to the following conditions:

   a)The exemption applies only to the dogs listed on the application (Georgie, Sunni and Crystal) and once any of the dogs are deceased, sold or otherwise disposed of, the exemption shall automatically lapse.

   b)The exemption shall automatically lapse on any offence relating to the Dog Act 1976 by either dogs or any person in charge of the dogs.

   c)The applicant provides written confirmation to the council within 30 days from the date of this order that they have means to effectively confining the dogs within the property.

   d)The property be kept clean of all animal excreta using disposal methods.

   e)Adequate cover is available for the dogs at all times.

   f)Access be given to the council for annual inspections or more regularly if the council so determines.

   g)The exemption may be varied or revoked in a manner provided for in s 26(3)(c) Dog Act.

I certify that this and the preceding eight pages comprise the reasons for decision of the State Administrative Tribunal.

______________________
B De Villiers
Member