RUZICS and CITY OF JOONDALUP
[2007] WASAT 314
•12 DECEMBER 2007
RUZICS and CITY OF JOONDALUP [2007] WASAT 314
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 314 | |
| DOG ACT 1976 (WA) | |||
| Case No: | CC:1556/2007 | 4 DECEMBER 2007 | |
| Coram: | DR B DE VILLIERS (MEMBER) | 11/12/07 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application successful | ||
| B | |||
| PDF Version |
| Parties: | AGNES RUZICS CITY OF JOONDALUP |
Catchwords: | Administrative law Review of decision Dog Act Grounds for exemption Exercise of discretion |
Legislation: | Dog Act 1976 (WA), s 26 State Administrative Tribunal Act 2004 (WA), s 18, s 27, s 29 |
Case References: | Gadd and Shire of Harvey [2007] WASAT 307 McLeod and Shire of Harvey [2007] WASAT 44 Pinnock & Anor and Shire of Mundaring [2005] WASAT 13 Robins & Anor and Shire of Harvey [2005] WASAT 28 |
Orders | 1. The decision by the City of Joondalup not to grant an exemption for Mrs Ruzics to keep six dogs, is set aside and substituted with the decision as set out in order 2.,2. Ms Ruzics may keep the six dogs the subject of this application at her residence subject to the following conditions:,a) The exemption applies only to the following dogs: Honey, Crystal, Lilly, Sophie, Lucy and Penny.,b) If any of these dogs is deceased, sold or otherwise disposed of, it may not be replaced or substituted.,c) Any barking must be kept to a minimum.,d) The property must be kept clean of all animal waste using acceptable disposal methods.,e) Adequate cover is available for the dogs at all times.,f) Access must be given to the City for annual inspections or more regularly if the City so determines.,g) The exemption may be varied or revoked in a manner provided for in s 26(3)(c) of the Dog Act 1976 (WA).,3. A period of two months is granted from the date of these orders to make arrangements regarding Toby and Charlie. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : DOG ACT 1976 (WA) CITATION : RUZICS and CITY OF JOONDALUP [2007] WASAT 314 MEMBER : DR B DE VILLIERS (MEMBER) HEARD : 4 DECEMBER 2007 DELIVERED : 12 DECEMBER 2007 FILE NO/S : CC 1556 of 2007 BETWEEN : AGNES RUZICS
- Applicant
AND
CITY OF JOONDALUP
Respondent
Catchwords:
Administrative law - Review of decision - Dog Act - Grounds for exemption - Exercise of discretion
Legislation:
Dog Act 1976 (WA), s 26
State Administrative Tribunal Act 2004 (WA), s 18, s 27, s 29
Result:
Application successful
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Paul Hrovatin (Acting as Agent)
Solicitors:
Applicant : Self-represented
Respondent : City of Joondalup
Case(s) referred to in decision(s):
Gadd and Shire of Harvey [2007] WASAT 307
McLeod and Shire of Harvey [2007] WASAT 44
Pinnock & Anor and Shire of Mundaring [2005] WASAT 13
Robins & Anor and Shire of Harvey [2005] WASAT 28
(Page 3)
Summary of Tribunal's decision
1 Mrs Ruzics sought review of a decision of the City of Joondalup to refuse to grant her exemption to keep eight dogs on her residential lot. She had been granted exemption in 2004 to keep six dogs, of which two have died. She now seeks exemption to keep eight dogs, or in the very least six dogs - thus enabling her to substitute the two dogs that died.
2 The City has refused to grant exemption primarily on grounds that she had breached the previous exemption conditions by not informing the City of the fact that two of the dogs had died and subsequently taking in additional dogs without the City's approval.
3 Mrs Ruzics admitted she had breached the conditions, but she explained the circumstances within which she had taken the additional dogs into her care. She also explained that all the dogs are kept in exceptionally good circumstances, they are not a nuisance and, if she is given a further exemption, she would not again breach it.
Background
4 Mrs Ruzics applied to the City of Joondalup (City) on 15 March 2003 to be granted exemption to keep six dogs at her residential property. The reason Mrs Ruzics had taken the dogs into care was because they had been neglected by their owners and ended in the care of Mrs Ruzics and her daughter, who is a veterinary nurse. They therefore provided a form of shelter and place of refuge for the animals. As the dogs recovered, she and her daughter realised they had become so attached to them they sought approval from the City to keep them.
5 After a visit to Mrs Ruzics' property to inspect the appropriateness thereof, and after consultation with neighbours, the City granted an exemption on 6 April 2004 to hold six dogs subject to several conditions, namely:
(a) if any of the registered dogs die or were no longer kept on the property, no replacement dog/s would be obtained;
(b) any barking would be kept to a minimum; and
(c) the exemption would be reviewed if any complaints received were substantiated.
(Page 4)
6 The City received a complaint from a neighbour in August 2007 of excessive barking at the residence of Mrs Ruzics. It sent Mr Ross, the senior ranger, to investigate. He reported nine dogs at the premises. There was substantial barking at the time, but the City stressed during the hearing that they were not basing their decision on a complaint of barking since it had not been substantiated by a log book. Mr Ross explained to the Tribunal that before the City acted on a barking complaint, a detailed log book of events over a two week period must be completed. In the case of Mrs Ruzics' dogs, no such log book was tendered to substantiate the complaint.
7 The City issued a notice of infringement since the number of dogs exceeded the 2004 permit conditions.
8 It appeared that of the original six dogs on the permit, two (Mitak and Benji) had passed away. The four remaining registered dogs on the permit were Charlie, Toby, Honey and Crystal. Four other unregistered dogs were kept on the property, Lilly, Sophie, Lucy and Penny. A ninth dog had been given to another carer since the site inspection.
9 The City contended at the hearing that the exemption to hold six dogs was initially given due to exceptional circumstances of Mrs Ruzics, but it was made clear to her that no new dogs may be brought onto the premises and if any of the registered dogs passed away or was otherwise disposed of, it was not to be replaced.
10 The City contends the fact that Mrs Ruzics breached the condition by keeping five unregistered dogs, is sufficient reason not to grant her any further exemptions other than to hold the original four remaining dogs. The City is therefore satisfied that the four of the original six dogs may remain at the premises, but contends no additional exemptions should be given by the Tribunal.
11 Mrs Ruzics contends that she and her daughter are excellent carers of the dogs, they had taken the dogs into their care after they had been rejected or neglected by their owners, and she and her daughter have now grown close to them. She produced records to show the dogs have been sterilized, microchipped, vaccinated annually, treated for intestinal worms every three months, and they are generally well taken care of.
12 Mrs Ruzics also produced a petition signed by eight of her nine neighbours in support of her application for exemption in which they:
(a) do not object to her keeping eight dogs on the property,
(Page 5)
- (b) confirm that the dogs have not been barking excessively; and
(c) that no other nuisance or complaint arose in regard to the dogs.
13 Mrs Ruzics indicated that if she is not granted the exemption to keep eight dogs, she would seek exemption to continue to keep the maximum of six dogs as allowed by the Dog Act 1976 (WA) (Dog Act). She offered to arrange for Toby and Charlie to be put down since they are old and not of good health. That would enable her to keep the remaining six dogs.
Orders sought
14 Mrs Ruzics is seeking a review of the decision by the City to refuse her application to keep eight dogs at their premises. She seeks an exemption to keep eight, or at least six dogs, namely Honey, Crystal, Lilly, Sophie, Lucy and Penny.
Statutory framework
15 The statutory framework against which the review occurs is as follows:
Dog Act 1976 (WA)
16 Section 26 of the Dog Actregulates the limitation as to the number of dogs that may be kept on a premises. Section 26(1) provides the number of dogs that may be kept on a premises may not exceed two, provided 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. The local government may not grant exemption for more than six dogs to be licensed. If a person exceeds the number of dogs, it constitutes an offence that may attract a penalty of up to $1000 and a daily penalty of $100. 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 (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.
(Page 6)
State Administrative Tribunal Act 2004 (WA)
17 The State Administrative Tribunal Act 2004 (WA) (SAT Act) determines that in exercising its review jurisdiction, the Tribunal must deal with a matter in accordance with the SAT Act and the enabling Act - in this case the Dog Act(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 a decision of the Tribunal is regarded as a decision of the decision-maker (s 29(5), SAT Act). The hearing conducted by the Tribunal is de novo which means the Tribunal is not restricted to the information that was before the City when it made the decision. The Tribunal can take into account any additional information that is of relevance to the application.
18 The parties made written and oral submissions and called witnesses to testify on their behalf. Mrs Ruzics called her daughter, Ms Ruzics, as witness and the City called its senior ranger Mr Ross as witness. Mr Hrovatin, agent for the respondent, also gave evidence as part of the submissions he made on behalf of the City. The Tribunal took all of the information and evidence into account in coming to its decision.
Applicants' submissions
19 The evidence and submissions of Mrs Ruzics and Ms Ruzics can be summarised as follows:
(a) Mrs Ruzics applied in 2004 for an exemption to keep six dogs, of which two are now deceased. She and her daughter, who is a veterinary nurse, take care of the dogs and provide them with shelter and refuge since their owners failed to take care of them.
(b) Mrs Ruzics realises that it was wrong to keep unregistered dogs but her love for dogs, the lack of adequate rescue facilities, the long waiting list at the RSPCA, the scarcity of other dog shelters and the desperate state in which the dogs were when she found them, caused her to keep and care for them. Since then the dogs have become like children to her and her daughter.
(c) The neighbours were consulted prior to the exemption permit being issued and since then only one neighbour
- out of nine has complained on one occasion to the City. The other neighbours have all recently signed a petition in support of the dogs being kept. The neighbour who complained did not produce a log book of the alleged barking and her complaint should therefore be treated as "unsubstantiated".
- (d) Mrs Ruzics and her daughter have taken exceptional care of the dogs as is reflected in the documents and receipts of the Wanneroo Veterinary Hospital. The City does not take any issue that she is a very good carer of the dogs.
(e) The area where the dogs are kept is grassed with an undercover area for them. The dogs also spend a lot of time indoors. She cleans the outside area at least twice a day so there is no risk of faeces attracting flies or causing a health hazard.
(f) She undertakes to comply with whatever conditions the Tribunal sets if only she could keep at least six dogs. She may be able to find alternative accommodation for the remaining two dogs or, as a last resort, arrange for them to be put down due to their poor health and age. Mrs Ruzics and Ms Ruzics undertook in evidence not to replace any of the dogs if they were to die or if a new owner is found.
Respondent's submissions
20 The evidence and submissions of the City can be summarised as follows:
(a) The approval to register six dogs that was granted to Ms Ruzics in 2004 was an exception and based on the unique circumstances presented to the City by Ms Ruzics.
(b) The City is generally reluctant to grant exemption to register more than two dogs since it may create a precedent. There are, however, some instances in which exemptions to register more than two dogs have been granted. In the case of Mrs Ruzics, it is preferable for her to apply for a kennel licence and conduct the caring of dogs outside the residential area.
(Page 8)
- (c) The purpose for which Mrs Ruzics is seeking the exemption is that she is offering the dogs a place of refuge. That is not a permitted use within a residential area.
(d) The City made it clear at the time when the exemption was granted, and it was acknowledged by Mrs Ruzics, that if any of the dogs die or otherwise disposed of, no other dog may replace them. It was therefore envisaged by the City that the number of dogs held on the property would be gradually reduced to two.
(e) Mrs Ruzics breached the exemption conditions by keeping up to nine dogs on the premises on the date on which the inspection occurred.
(f) The City is not basing its decision to refuse a further exemption on complaints regarding the behaviour or barking of the dogs or the inability of Mrs Ruzics to properly take care of the dogs. It bases the decision on the breach of the conditions that were placed on the original exemption.
(g) The original exemption should therefore remain in effect. That would mean that the following four dogs remain registered: Charlie, Toby, Honey and Crystal. The other unregistered dogs must be removed from the premises.
Consideration
21 It is generally accepted in our society that dogs can bring much joy to families and are often so integrated with a family that they become "part" of the family life. It is not uncommon for persons to refer to dogs as akin to their "children". It is, especially in instances where persons are relatively isolated from the rest of society for whatever reason, that their dog can become the core motivation that keeps them going. Dogs are indeed more than mere pets. They often become an extension of the household.
22 This does not mean, however, that dog ownership should not be regulated. Dogs can also become a nuisance to society if they are not well taken care of, if their barking causes disruptions or if their litter is not properly disposed of. Society also has an obligation towards dogs to ensure they are kept in reasonable and clean facilities. Dog ownership is therefore a multi-faceted affair and not merely an interaction between owner and dog.
(Page 9)
23 The Dog Act provides the legal framework that regulates the ownership and registration of dogs. The City is the authority that manages the operation of the Dog Act and it must balance the public and individual interests.
24 Although the Dog Actlimits the number of dogs per property to a maximum of two, the local government may grant an exemption for more dogs to be held (up to a maximum of six) and impose certain conditions subject to the provisions of that Act.
25 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 at a residential premises. There is a risk of nuisance and the local authority has an obligation towards the public to minimise the risk by regulating the number of dogs per premises.
26 The local government must, however, apply its mind to each application for an exemption and cannot merely rely on a policy of two dogs per lot to justify a rejection of an application for exemption. For example, refer to Robins & Anor and Shire of Harvey [2005] WASAT 28 in which the Tribunal rejected the contention of the Shire that an exemption to keep three dogs could not be granted due to the size of the block. In that matter the Tribunal found that the block was indeed big enough to hold a third dog.
27 The local government must take several factors into account when making its decision, 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, previous complaints, the breed, and the motivation supporting the application for exemption. Robins and Shire of Harvey at[20].
28 In this matter, it is incumbent on the City, in light of the wide range of factors that could influence its decision to grant or refuse an exemption, to provide to the Tribunal information to show that it had considered all the relevant factors referred to above prior to it making its decision. McLeod and Shire of Harvey [2007] WASAT 44 at 58.
(Page 10)
29 Although the City referred to a complaint it had received of barking, Mr Ross made it clear during the hearing the decision of the City was not based on
(a) complaints regarding nuisance barking; or
(b) that the dogs were not well taken care of. This contrasts with the City's letters to Mrs Ruzics dated 19 September 2007 and 29 October 2007.
30 In the letter of 19 September 2007, Mr Hrovatin referred to two grounds for the City's refusal of the exemption, namely nuisance barking and a breach of the exemption conditions. In the letter of 29 October 2007, Mr Hrovatin raises a third reason for refusal, namely concerns of the welfare of the dogs in light of the suitability of the property.
31 During the hearing, the City did not provide any evidence in regard to the lack of suitability of Mrs Ruzics' property to hold six dogs. The City conceded that it had granted an exemption to register six dogs in 2004 after it had investigated the suitability of the property and had consulted with neighbours. Nothing in regard to the suitability of the property has changed since then. There is consequently no evidence before the Tribunal to conclude that the property is not suitable for holding six dogs.
32 The City also indicated during the hearing that it was not in dispute that Mrs Ruzics is an excellent carer of her dogs. This is supported by the evidence of Mrs Ruzics and her daughter, and documentation showing the dogs undergoing regular medical checkups and other treatments. The dogs have been sterilised, they are taken for regular exercise and their condition is, as illustrated in the photographs, excellent. The City has not placed before the Tribunal any evidence to challenge the quality of care the dogs receive. There is consequently no evidence before the Tribunal to conclude that the welfare of the six dogs is at risk due to overcrowding or lack of care.
33 The City, through the evidence of Mr Ross, acknowledged that although the dogs were barking furiously on the day when he paid a visit to the property, the requirements of the City for a complaint of excessive barking have not been met by the complainant. He explained that the City would require a very detailed log book kept over a period of 14 days to support any complaint of excessive barking. The log book would have to indicate the time of barking, the duration and any other relevant
(Page 11)
- information. The single complaint received was therefore, in the words of Mr Ross, "not substantiated". This evidence is consistent with the petition signed by eight of the nine neighbours that they do not experience excessive barking. There is consequently insufficient evidence before the Tribunal that the dogs are causing a nuisance through incessant barking.
34 The sole ground relied on by the City during the hearing in support of its decision, is that Mrs Ruzics had breached the previous conditions by taking in more dogs than she was licensed for. The question is if this breach is sufficient justification to refuse the exemption.
35 Mrs Ruzics and her daughter admitted and apologised during the hearing for the breach of the 2004 exemption. They explained at length their love of dogs, the moral obligation they felt to care for the animals and the care they take to prevent the dogs causing a nuisance. They also gave an undertaking that, if the six dogs as proposed by them were given exemption, they would not ever again breach conditions.
36 The Tribunal is cognisant that Mrs Ruzics contributed to the trauma they are experiencing by taking in unregistered dogs. Had they complied with the 2004 conditions, they would not have taken in new dogs which in turn caused them to face the trauma of removing the unregistered dogs. While one could respect their love of dogs, Mrs Ruzics and her daughter cannot operate outside the ambit of the Dog Act by taking the law into their own hands. They knew that by taking under their care the additional dogs, they were breaching the provisions of the Dog Act.
37 It appears as if Mrs Ruzics and her daughter perceived their moral obligation to the dogs, to outweigh their duty to comply with the law. Some of the remarks made by Mrs Ruzics appeared as if she was blaming the City for its so-called "inhumane" action, while in fact it was she who breached the conditions of the permit. Mrs Ruzics may have assumed that she was acting within the law to hold six dogs in accordance with the original exemption, but she then went on to take in nine dogs. This was a serious error of judgement and may even have led to prosecutions under the Dog Act.
38 The Tribunal is also mindful that the City has an important regulatory and administrative function to ensure its policies are implemented consistently in its area of jurisdiction. The concern of the City, namely that an exemption to keep such a large number of dogs may lead to other requests, is understood by the Tribunal. But, on the other hand, the City granted an exemption in 2004 after it had done all the necessary inspections of the property and after it had
(Page 12)
- consulted with neighbours. The City therefore acknowledged in 2004 that the circumstances of Mrs Ruzics were so unique she should be granted exemption to register six dogs. Although the exemption to hold six dogs were subject to strict conditions, the City acknowledged `in evidence that circumstances may arise where up to six dogs would be allowed on a residential property. Mr Hrovatin also indicated in his submissions that although scarce, it is not entirely unique that exemption is given for a person to hold six dogs on a residential property.
39 The Tribunal must determine if the non-compliance with the original conditions is a sufficient ground to refuse the application for an exemption. In the matter of Gadd and Shire of Harvey [2007] WASAT 307 the Tribunal found that the mere fact that an unregistered dog had been on the premises was not in itself sufficient grounds upon which to refuse an exemption. The Tribunal found the Shire had erred by not considering all the relevant criteria prior to its coming to a decision.
40 In this matter, the Tribunal must therefore take into account Mrs Ruzics' breach of a previous condition, but it must also consider all other relevant information.
41 The Tribunal accepts that in Gadd application was made for only one exemption, Mrs Ruzics is seeking four or even six dogs to be exempted. The principle, however, remains the same, namely that the City must show it had an open mind when it considered the application for exemption and that it took into account all the relevant information in favour and against the granting of the exemption. If the City fails to exercise its discretion properly, the process of seeking an exemption would become "illusory". Pinnock & Anor and Shire of Mundaring [2005] WASAT 13.
42 The Tribunal must balance all the factors for and against the application for an exemption.
43 On the one hand, the fact that Mrs Ruzics breached the previously granted exemption is serious and must weigh against further exemptions being made. She knowing breached the law, and even during her evidence seemed to blame the City for fulfilling its duty. On the other hand, Mrs Ruzics and her daughter appeared to be very sincere, law-abiding citizens whose love of dogs may have caused them to flout the exemption conditions but they have shown serious remorse. They have also given an undertaking that, if granted an exemption, they would
(Page 13)
- never breach the conditions again. The Tribunal was impressed by their sincerity, their love of dogs, the quality of care they offer to the dogs, the emotional trauma they have experienced and the honesty they showed when giving evidence.
44 In summary, the Tribunal is of the view that their breach of the previous conditions is outweighed by the factors supportive of an exemption, namely support expressed by their neighbours, the previous exemption granted by the City after having inspected the property, the quality of care available to the dogs, and the absence of verifiable complaints.
45 The case for an exemption to keep the maximum number of dogs, namely six, has been properly made out.
46 The circumstances of this case are rather unique and the Tribunal is not concerned that this finding would necessarily open the proverbial floodgates for other owners to seek similar exemptions. The fact that the City inspected the property in 2004 and on the basis of its own analysis of the facilities at the time decided to grant an exemption for six dogs, weighed heavily in the mind of the Tribunal.
47 In order to ensure the large number of dogs do not cause a nuisance, strict conditions should be imposed on Mrs Ruzics. These proceedings would have made her aware that a breach of these conditions may lead to the exemption being revoked.
48 The Tribunal notes Mrs Ruzics indicated by her own volition, that two of the dogs currently registered, Toby and Charlie, are of poor health and they may have to be put down or alternative housing sought. The Tribunal is of the view that Mrs Ruzics should, in light of the Christmas festive season we are now celebrating, be afforded enough time to make a decision.
49 The order should therefore
(a) grant an exemption for six dogs to be held at the property; and
(b) allow a period of 2 months from the date of the order to comply therewith. That would effectively give her two months to decide what to do with Toby and Charlie.
(Page 14)
Finding
50 The Tribunal finds Ms Ruzics has made a sufficient case for an exemption to be granted for her to hold the following dogs at her property: Honey, Crystal, Lilly, Sophie, Lucy and Penny. The exemption will be subject to conditions set out in the order. Pursuant to s 26(5) of the Dog Actand s 29(3) of the SAT Act, the Tribunal is empowered to set aside the decision by the council and to substitute it with a new decision.
51 A period of two months from the date of these orders is given to Ms Ruzics to make arrangements in regard to Toby and Charlie.
Orders
1. The decision by the City of Joondalup not to grant an exemption for Mrs Ruzics to keep six dogs, is set aside and substituted with the decision as set out in order 2.
2. Ms Ruzics may keep the six dogs the subject of this application at her residence subject to the following conditions:
a) The exemption applies only to the following dogs: Honey, Crystal, Lilly, Sophie, Lucy and Penny.
b) If any of these dogs is deceased, sold or otherwise disposed of, it may not be replaced or substituted.
c) Any barking must be kept to a minimum.
d) The property must be kept clean of all animal waste using acceptable disposal methods.
e) Adequate cover is available for the dogs at all times.
f) Access must be given to the City for annual inspections or more regularly if the City so determines.
g) The exemption may be varied or revoked in a manner provided for in s 26(3)(c) of the Dog Act 1976 (WA).
3. A period of two months is granted from the date of these orders to make arrangements regarding Toby and Charlie.
(Page 15)
I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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