WHITEHEAD and CITY OF SWAN
[2019] WASAT 124
•6 DECEMBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: DOG ACT 1976 (WA)
CITATION: WHITEHEAD and CITY OF SWAN [2019] WASAT 124
MEMBER: MR S WILLEY, MEMBER
HEARD: 6 NOVEMBER 2019
DELIVERED : 6 DECEMBER 2019
FILE NO/S: CC 1155 of 2019
BETWEEN: ANNE WHITEHEAD
Applicant
AND
CITY OF SWAN
Respondent
Catchwords:
Dog Act - Dog Local Law - Keeping of dogs - Application for exemption to keep between three and six dogs - Dog exhibitions - Dog breeding - Dog kennel - Noise - Barking - Odour
Legislation:
City of Swan Consolidated Local Laws 2005, cl 12
City of Swan Local Planning Scheme No 17
Dog Act 1976 (WA), s 26, s 26(1), s 26(3), s 26(5), s 27(1)
Local Government Act 1995 (WA)
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 24, s 27, s 29(1), Div 3, Pt 3
Result:
Respondent’s decision affirmed
Summary of Tribunal's decision:
Ms Anne Whitehead (applicant) seeks approval to keep six dogs on her residential property in Bullsbrook (Property). The Property has an area of 2,017m2. The City of Swan (respondent) refused the application on the basis that the dogs are causing adverse impacts on neighbours in the form of barking and odour. Five neighbours objected to the application.
The applicant exhibits dogs. As part of exhibiting dogs, she also breeds them. The dogs being kept on her Property had three litters - producing 21 pups - between September 2018 and April 2019. Pups that are not considered to be show dog quality are sold for approximately $1,000 each. The applicant also operates a dog grooming business from the Property.
Issues relating to the numbers of dogs being kept on the Property first emerged in 2014. In January 2019 the applicant was found to be keeping nine adult dogs on the Property.
The respondent's local dog law, in the context of applications to keep more than two dogs on residential zoned land, focuses on whether there are objections from neighbouring properties. Having heard and considered the evidence, the Tribunal found that the neighbours' objections to the application were reasonable. The Property is, in effect, operating as a kennel. The dogs are kept in confined concrete enclosures for periods of time and (save for two) are not permitted to sleep in the dwelling but instead sleep in a shed. The dogs routinely bark and that is causing an issue for adjoining and nearby residents.
The Tribunal found that the correct and preferable decision is to affirm the respondent's decision to refuse the application to keep six dogs on the Property.
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr T L Beckett |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Corrigan and Shire of Northam [2009] WASAT 140
Douglas and City of Wanneroo [2014] WASAT 4
Limnios and City of Stirling [2010] WASAT 7; (2010) 69 SR (WA) 200
McLeod and Shire of Harvey [2007] WASAT 44; (2007) 50 SR (WA) 257
Mnyirrinna v McIntosh [2003] WASCA 305
Pinnock and Shire of Mundaring [2005] WASAT 13
Quarry and City of Bayswater [2019] WASAT 60
Robins and Shire of Harvey [2005] WASAT 28
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
In Mnyirrinna v McIntosh [2003] WASCA 305 at [1] - [2], Barker J 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 …
To deal with dogs, particularly those found in residential areas, the Dog Act 1976 (WA) was enacted.
(See also McLeod and Shire of Harvey [2007] WASAT 44; (2007) 50 SR (WA) 257 at [9] (McLeod)).
These proceedings relate to an application from Ms Anne Whitehead (applicant) under s 26(5) of the Dog Act 1976 (WA) (the Dog Act) for a review of the decision of the City of Swan (City or respondent) on 2 July 2019 to refuse the applicant's proposal to keep six dogs at her property (Application).
The applicant resides at 26 Kimberley Street, Bullsbrook (Property). The Property is zoned 'Residential' in the City of Swan Local Planning Scheme No 17 (LPS 17). The Property has an area of 2,017m2. The Property forms part of a low density residential enclave where all lots are coded R5 (meaning that each lot is approximately 2,000m2 in area). Across the road from the Property is a conservation reserve.
On 11 February 2019, the applicant lodged the Application with the City.
The City's Local Law
Pursuant to s 26(1) of the Dog Act a local government may, by way of a local law, limit the number of dogs that may be kept on a property.
On 16 February 2005, the City gazetted the City of Swan Consolidated Local Law 2005 (Local Law) pursuant to the Local Government Act 1995 (WA) and the Dog Act and includes the following provisions:
12.7 Limit on number of Dogs
(1)The limit on the number of dogs which may be kept on any premises is, for the purpose of section 26(4) of the Dog Act‑
(a)2 dogs over the age of 3 months and the young of those dogs under that age where the premises do not satisfy the requirements of paragraph (b); and
(b)4 dogs over the age of 3 months and the young of those dogs where‑
(i)the premises are within the general rural zone under a town planning scheme;
(ii)the premises are not less than 100 hectares in area; and
(iii)the occupiers of premises comply with the provisions of these Local Laws relating to the keeping of the dogs and any other written law relevant to the keeping of the dogs.
(2)The City may exempt premises from the application of subsection (1)(a) if‑
(a)the owner or occupier of the premises lodges an application for such an exemption accompanied by any fee imposed in relation to that application and evidence satisfactory to the City that‑
(i)where the premises are in a residential zone, all owners and occupiers of property within 50 metres of a boundary of the premises;
(ii)where the premises are in a rural zone, all owners and occupiers of property within 100 metres of a boundary of the premises; or
(iii)where the premises are in a rural zone and the premises abut a residential area, all owners and occupiers of property within 50 metres of a boundary of the premises,‑
have been informed in writing of the application to keep additional dogs and that any objection they may want to make must be made in writing and given to the City within 21 days of the application first being given to the City;
(b)the City has not received any written objection to the application to keep additional dogs within a period of 21 days of the application being given to the City;
(c)no dogs are on the premises that are over 3 months of age and that are not the subject of the application; and
(d)the owner or occupier has registered all the dogs the subject of the application in accordance with the Dog Act, within 21 days of the application being first given to the City.
Pursuant to cl 12.7(2)(a) of the Local Law, the respondent may grant an exemption from the limitation on the number of dogs that may be kept under cl 12.7(1).
Because the Property is zoned for residential purposes, no more than two dogs may be kept at the Property unless the City grants an exemption under cl 12.7(2)(a) of the Local Law.
An exemption under cl 12.7(2) of the Local Law may be granted if, in the context of a residential property, all owners and occupiers within 50 metres of the boundary of the premises have been informed in writing of the application to keep additional dogs and no written objections have been received.
The Application
The Application seeks approval to keep the following dogs at the Property.
NAME
BREED
REGISTRATION NO
Woody
German Shorthaired Pointer
96887
Jessie
German Shorthaired Pointer
96894
Imelda
German Shorthaired Pointer
96888
Ava
German Shorthaired Pointer
96891
Bridget
German Shorthaired Pointer
96893
Paddy
Irish Water Spaniel
722727
However, at the final hearing, the applicant advised there are only five dogs at the Property as Woody and Imelda are no longer there. The applicant now proposes to keep a dog called Alfie, a 4‑month‑old pup, at the Property.
Objections to the Application and the City's refusal
The City received five objections from neighbours in relation to the Application. The objections raised issues of:
(a)odour;
(b)barking; and
(c)the confinement and control of dogs.
Two neighbours advised that they had no objection to the Application.
The City submits that since 2017 numerous complaints have been received in relation to dogs being kept at the Property.
The City's decision to refuse the Application on 2 July 2019 was made 'in view of the objections and the complaints received … the number of dogs proposed to be kept at the Property, and the size and zoning of the Property'.
Materials before the Tribunal
The Tribunal received a statement of issues, facts and contentions (SIFC) and a bundle of documents pursuant to s 24 of the SAT Act from the respondent. The applicant did not file a SIFC but instead provided a witness statement (discussed below) which outlined her case. The applicant does not challenge any of the facts that are put forward by the City in terms of the relevant history of dogs being kept at the Property.
The evidence
Both parties filed evidence for the final hearing of this review in the Tribunal on 6 November 2019.
The applicant's evidence
The applicant gave evidence outlining the measures she has put in place to control barking noise at the Property (on an App known as 'Bark'n Mad'). The applicant explained the circumstances in which one of her dogs escaped under a fence (the bottom of the fence had been removed by a neighbour) and killed four chickens on a neighbouring property. The applicant detailed her long experience and association with dogs as an exhibitor and breeder.
The applicant moved to the Property in 2005 and gave up full‑time work in 2018 to allow her to be on the Property more often in light of the issues with her dogs and the stress this was causing her.
In June 2019, she says gave up work altogether. However, the applicant is running a dog grooming business from the Property. While the applicant was initially evasive about whether her dog grooming business was active, in cross‑examination, she conceded it was.
The applicant's evidence included photographs of the Property which identified that there are four dog enclosures (each with dimensions of 4 by 2 metres) and a larger area. The enclosures ‑ which present as commercial kennels ‑ have a concrete floor and chain‑mesh fencing. The dogs are kept in the enclosures/kennels when the applicant is away from the Property. Each enclosure has a bed and a water bowl. When the applicant is at home, the dogs are allowed into the yard.
There is a shed where the dogs sleep at night (save for two dogs which are allowed inside the dwelling). The dogs that sleep in the shed wear a barking collar at night. The dogs also wear a barking collar when the applicant is away from the Property.
The enclosures are approximately 15 metres east of the applicant's dwelling. Between the enclosures and the dwelling is the shed. The distance between the shed and the dwelling is approximately 10 metres.
The applicant exhibits dogs. As part of the showing of dogs, the applicant breeds dogs. The applicant submits that in order to be a show dog, a dog cannot be sterilised. Three of the dogs at the Property are breeding females (Jessie, Ava and Bridget). The applicant's dogs have had three litters between September 2018 and April 2019, which resulted in 21 pups. Pups that are not considered to be show dog quality are sold for about $1,000 each. The applicant's evidence was that $1,000 for a pup is the industry standard across Australia.
The applicant denied there is a commercial component to the sale of the pups but was not able to provide any details of the costs associated with rearing pups. However, the applicant indicated that the price of $1,000 included veterinarian fees as well as food. The applicant advertises the sale of the pups via electronic media.
The applicant also explained that she had put in place an improved buffer in the enclosure area (being garage doors) to better insulate against noise. The applicant was also planting additional vegetation.
The applicant's evidence also includes two letters from nearby residents which outline that the applicant is a responsible dog owner and that there are no longer any barking issues on the Property.
The applicant's evidence was that her dogs are everything. They are her family.
The respondent's evidence
Ms Le Page
The respondent called two witnesses. Ms Jackie Le Page, who is a community safety advocate at the City, outlined the history of the Property and in particular the issues in relation to dogs being kept at the Property which first emerged in around 2012.
Ms Le Page detailed that the City has been receiving complaints about the large number of dogs being kept at the Property for 'several years'. Ms Le Page first tried to inspect the Property in 2014 following a complaint that the applicant was keeping 30 dogs. At that time, the applicant did not allow Ms Le Page to inspect the Property.
Ms Le Page outlined that the City granted an exemption under the Local Law in 2006, which allowed the applicant to keep four dogs on the Property. The exemption applied to the four dogs named in the exemption application, none of which still live at the Property. The exemption granted in 2006 no longer has effect.
Ms Le Page outlined that the City issued the applicant with barking abatement orders on 25 October 2017 and 19 April 2018, as a result of complaints in relation to the applicant's dogs.
On 23 January 2019, the City received complaints in relation to dog barking at the Property. The City made contact with the applicant who assured her that only two adult dogs were being kept at the Property. However, the applicant advised she would not grant the City access to the Property.
The City then obtained a warrant to inspect the Property. On 30 January 2019 the City attended the Property for the purposes of an inspection. The applicant again refused to allow the City's officer(s) access to the Property. After lengthy discussions, the applicant advised the City that there were seven adult dogs, two 16‑week‑old puppies (which are also adult dogs) and nine 2 day old puppies on the Property.
Following the inspection, on 4 February 2019, the City issued a caution on the applicant for keeping more than the prescribed number of dogs on the Property. Ms Le Page suggested the applicant apply for approval to keep more than two dogs so that a 'workable solution' could be found.
On 18 February 2019 the Application was made to the City. Before the Application was determined, on 25 February 2019 the City carried out a further inspection of the Property under warrant. That inspection identified that eight adult dogs were being kept at the Property. The applicant explained that two dogs had not yet been re‑homed.
As at 3 April 2019, there were still eight dogs at the Property.
On 25 June 2019 a further inspection was carried out under warrant with the police present. Eight adult dogs were present together with a 6 week‑old rescue pup.
Ms Le Page's evidence was that the accommodation for the dogs at the Property appeared to 'be more consistent with a commercial kennel, rather than being kept as pets'. It is Ms Le Page's evidence that the dog enclosures provide no effective noise mitigation measures.
Mr Jarrod Mann
The respondent also called Mr Jarrod Mann who lives close to the Property. Mr Mann outlined that he and his family suffer disturbance from the dogs being kept at the Property in terms of barking and other noise, as well as odours during the warmer months.
Mr Mann outlines that since he moved into the premises at the rear of the Property in December 2013, dogs have been an issue. Mr Mann has kept barking dairies of the dogs at the Property. These diaries formed part of the evidence before the Tribunal. Mr Mann prepared diaries in February/March 2017, July/August 2017, November/December 2017, January 2018 and February/March/April 2019.
Mr Mann's evidence is that, in summary, dog barking at the Property is an issue most days but the duration of the barking varies. Sometimes the barking can be for an hour or two, sometimes less. It can be intermittent or constant. Mr Mann's evidence is that when one dog starts barking this prompts two or three others to join in. The dog kennels are kept close to his boundary fence. His evidence is that the noise from the dog barking means that he and his family use their outdoor areas less (for example when friends are visiting). The dog barking also wakes up his daughters.
Issue in dispute
The issue in dispute in these proceedings is whether, in the exercise of the Tribunal's discretion under s 26(3) of the Dog Act, the applicant ought to be granted an exemption pursuant to cl 12(2) of the Local Law, so as to allow the applicant to keep up to six dogs at the Property.
Statutory framework
Division 3 of Pt 3 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) sets out the scope of the Tribunal's review jurisdiction. Section 29(1) of the SAT Act provides the Tribunal with the corresponding jurisdiction, functions and discretions as those of the City under the Dog Act.
Pursuant to s 27 of the SAT Act, the purpose of the Tribunal's review is to produce the correct and preferable decision at the time of the review. The Tribunal hears review matters do novo and stands in the shoes of the City.
Section 26 of the Dog Act is in the following terms:
(1)A local government may, by a local law under this Act ‑
(a)limit the number of dogs that have reached 3 months of age that can be kept in or at premises in the local government's district; or
(b)limit the number of dogs of a breed specified in the local law that can be kept in or at premises in the local government's district.
(2)A local law mentioned in subsection (1) ‑
(a)may limit the number of dogs that can be kept in or at premises to 2, 3, 4, 5 or 6 only; and
(b)cannot prevent the keeping in or at premises of one or 2 dogs that have reached 3 months of age and any pup of either of those dogs under that age; and
(c)cannot apply to dogs kept at premises that are licensed under section 27 as an approved kennel establishment; and
(d)cannot apply to dangerous dogs (declared) or dangerous dogs (restricted breed).
(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 in the exemption; and
(b)cannot authorise the keeping in or at those premises of ‑
(i)more than 6 dogs that have reached 3 months of age; or
(ii)a dog under that age unless it is a pup of a dog whose keeping is authorised by the exemption;
and
(c)may be revoked or varied at any time.
(4)A person must not keep in or at any premises, not being licensed under section 27 as an approved kennel establishment ‑
(a)in the case of dogs that have reached 3 months of age, other than dangerous dogs (declared) or dangerous dogs (restricted breed), more than the number of dogs than the limit imposed under ‑
(i)a local law mentioned in subsection (1); or
(ii)an exemption granted under subsection (3);
or
(b)more than ‑
(i)2 dangerous dogs (declared); or
(ii)2 dangerous dogs (restricted breed); or
(iii)one of each of those kinds of dangerous dogs,
that have reached 3 months of age; or
(c)any pup, of a dangerous dog (restricted breed), that is under 3 months of age.
Penalty:
(a)for an offence relating to a dangerous dog ‑
(i)a fine of $10 000, but the minimum penalty is a fine of $500;
(ii)for each separate and further offence committed by the person under the Interpretation Act 1984 section 71, a fine of $500;
(b)for an offence relating to a dog other than a dangerous dog ‑
(i)a fine of $5 000;
(ii)for each separate and further offence committed by the person under the Interpretation Act 1984 section 71, a fine of $100.
(5)Any person who is aggrieved ‑
(a)by the conditions imposed in relation to any exemption under subsection (3); or
(b)by the refusal of a local government to grant such an exemption, or by the revocation of an exemption,
may apply to the State Administrative Tribunal for a review of the decision.
(6)An application under subsection (5) cannot be made later than the expiry of a period of 28 days after the day on which a notice of the decision is served on the person affected by that decision.
Section 27(1) of the Dog Act provides as follows:
Where, under section 26(1)(a) or (b), a limit is imposed on the number of dogs that can be kept in or at any premises situate in a local government's district area, and a person proposes to keep more than that number of dogs in or at premises in that area that are not exempt from the limitation, the person must apply for the premises in question to be licensed as an approved kennel establishment.
The relevant provisions of the Local Law are set out at [4] ‑ [8] above.
Relevant case law
In Pinnock and Shire of Mundaring [2005] WASAT 13 (Pinnock) the Tribunal stated at [15] that:
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.
The Tribunal has considered the exercise of its discretion regarding the exemption for the number of dogs permitted under s 26(3) of the Dog Act in a number of decisions.
These decisions inform the question of how the discretion under s 26(3) of the Dog Act may be approached. For example, in Pinnock the Tribunal noted that at [19] ‑ [20]:
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.
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.
In Robins and Shire of Harvey [2005] WASAT28 the Tribunal set out a number of criteria that may inform the discretion under s 26(3) of the Dog Act. The Tribunal stated at [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.
In McLeod the Tribunal found at [54]:
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 Douglas and City of Wanneroo [2014] WASAT 4 the Tribunal commented at [39] ‑ [40] that:
As stated, the respondent's Local Law does not identify any factors to be taken into account in assessing or approving an application for an exemption from the restriction of keeping only two dogs on premises … The Tribunal finds that the applicant's property is sufficient (16,000 m²) to accommodate the health and wellbeing needs of the German Shepherds, the hens and the Maltese. There is no evidence of any misconduct by or in relation to the Maltese. The Tribunal finds that the likelihood of any of the applicant's dogs straying has been diminished and the applicant's dogs are unlikely to create a nuisance resulting in any complaints by any reasonable neighbours. The Maltese is to be kept in the home, by and large, and there is no evidence that the additional dog will have any significant impact on the wellbeing and behaviour of the applicant's German Shepherds and horses.
There is no reason, in the Tribunal's view, why the applicant's application for an exemption from the restriction limiting the keeping of two dogs on the applicant's property made on 11 February 2013 should not be granted. For these reasons, the Tribunal shall set aside the reviewable decision to refuse the applicant's application and shall substitute its own decision to grant the applicant's application.
More recently in Quarry and City of Bayswater [2019] WASAT 60 (Quarry) the Tribunal stated, in the context where an applicant was looking after 'foster' dogs, that the Tribunal has to inquire whether (at [38]):
… the true nature and character of the use … is more equivalent with operating a dog kennel[.]
The City's submissions
Whilst the City acknowledged that the Tribunal has discretion to approve the Application, it submitted that its decision to refuse to grant the applicant an exemption for the purposes of s 26(3) of the Dog Act should be affirmed.
The City's submissions are that the dogs are being kept in accommodation which, in reality, are commercial kennels. The dogs are not pets but are part of a 'larger' operation. That 'larger' operation – which the applicant says is her hobby - includes the showing of dogs, the breeding of dogs, the rearing of pups and, as the applicant admitted in the final hearing, a dog grooming business which is run from the Property.
The City also submitted that barking and nuisance issues that arise from the Property stem from the fact that the dogs are (save for two) not kept inside and kept confined (in the kennels) when the applicant is not home.
The kennel area comprises chain‑link fencing and colour‑bond roofing and is therefore not designed to mitigate noise issues.
The City also referred to the objections that have been received as evidence that whatever arrangements the applicant has in place for the dogs, they are not working.
The City also points to the applicant's history on non‑compliance in its submission that a conditional approval of the Application is not appropriate.
The City referred to the Tribunal's decision in Limnios and City of Stirling [2010] WASAT 7; (2010) 69 SR (WA) 200 (Limnios) where it was stated (at [70]):
It is not by right that additional dogs may be kept. The City, if it grants an exemption, must ensure that conditions that may accompany an exemption are met. This is also understandable. By allowing more than two dogs on a single premises, the risk of collective nuisance, and especially of barking, increases[.]
The City also referred to the Tribunal's analysis in Corrigan and Shire of Northam [2009] WASAT 140 (Corrigan) where (at [34]) it stated:
A local government, considering an application for an exemption from a local law limiting the number of dogs which may be kept on a property within its jurisdiction, must deal with the application in a practical way. It cannot be expected that the local government will carry out a protracted enquiry or hearing in order to determine applications of this nature. It is appropriate to act on submissions from neighbours, as was done in this matter. Where there are a number of objectors, and the grounds of objection are consistent and will constitute valid grounds if accepted, and are apparently well-founded, that should be a suffıcient basis upon which the local government might refuse the application.
Applicant's submissions
The applicant's submissions are that she shows dogs as a hobby. While her dogs have had litters in the past, she is unlikely to breed them in the future due to her age. She is a responsible dog owner and has put in place a range of measures to ensure her dogs are well‑managed. These include barking collars and also video and noise surveillance of the enclosures. The applicant suggested that Mr Mann is the driving force behind her current issues with the City and only when he moved to the rear property in December 2013 did these issues emerge.
The applicant submits that complaints about odours from dog faeces are inaccurate as the odour is caused by dynamic lifter and that complaints that she is constantly in her shed are misplaced. There is nothing untoward about the applicant spending time in her shed. She said that the real noise source is the vacuum blower which she uses for leaves. In her closing submissions, she reiterated that her dogs are her family.
Analysis and disposition
Unlike some other local government dog laws, the Local Law does not include locational or other factors (such as property size, standard of accommodation, shade, fencing and shade) that may inform the exercise of discretion as to when an exemption may be granted under cl 12(2).
However, what is relevant under the Local Law, in the context of applications to keep more than two dogs on land that is zoned 'Residential', that all owners and occupiers within 50 metres of the Property are advised of the application and that no written objections are made: cl 12(2)(a)(i), cl 12(2)(b) of the Local Law.
In this instance, five objections were received by the City which raised concerns about barking and odour emanating from the Property as well as how the dogs are confined.
As was explained at [34] of Corrigan (referred to at [74] of Limnios), it is appropriate that a local government act on the complaints of neighbours and that where the grounds of objection are consistent, these are valid grounds on which an application for an exemption under the Local Law may be refused.
In my view, the grounds of objection are all relatively consistent in that the neighbours report barking and other issues arising from the Property. I note that all but one objection was received from neighbours that abut the Property. However, two submissions did not object to the Application (including one from an immediately adjoining property).
The applicant submitted that Mr Mann is, as it were, the chief complainant. I accept that. Mr Mann's dwelling is only 15 metres from the dog enclosures. His evidence was that the applicant's dogs, by reason of the barking, are impacting him and his family. However, as I have set out, Mr Mann is not alone in lodging an objection. Mr Mann explained how he compiled the barking diaries that recorded the time and duration of dogs barking at the Property. I found Mr Mann to be a credible witness and I accept his evidence.
I also accept the evidence of Ms Le Page. Ms Le Page's evidence sets out the relevant background in relation to the keeping of dogs on the Property. Ms Le Page's evidence was not seriously contradicted or challenged by the applicant. I consider that the City has been very patient, and has tried to work with the applicant, in relation to her dogs.
The applicant suggested that some of the City's conduct has been underhanded. For example, the applicant referred to the City just turning up at the Property with a warrant without giving her prior notice.
However, the applicant admitted in evidence that in January 2019 she lied about how many dogs were being kept at the Property. It is therefore entirely reasonable for the City to undertake an inspection without prior notice so that it can ascertain an accurate picture of how many dogs are being kept at the Property.
The City has broader responsibilities than the applicant. It must balance the interests of all residents. To the extent that the applicant suggested she has been targeted or victimised by the City, I do not agree. I consider the City (including Ms Le Page) has been reasonable in how it has dealt with the applicant.
In relation to the applicant, I do not accept all of her evidence. I do not accept that she is winding down her breeding activities due to her age. If that is the case why is there a need to keep three breeding females? While it may be the case that show dogs cannot be sterilised, I fail to see why there is need to retain three breeding females at the Property if no further breeding is proposed.
I also do not accept the applicant's evidence that there is not a commercial component to the sale of her pups. Her explanation of the cost of rearing and selling pups was very vague and unconvincing. Based on the evidence, it would appear she has sold (up to) 21 pups since September 2018 for approximately $1,000 each. I find that the applicant's sale of pups is a commercial enterprise at some level.
It is also the case that I do not accept that the only dogs that will be kept at the Property will only be those identified in the Application. The applicant admitted that other dogs may come and stay with her for either breeding or exhibition purposes.
However, I do accept that the applicant is passionate about showing dogs. I also do accept that she is trying to minimise the noise that her dogs cause on surrounding properties. That is evinced through the barking collars the dogs wear as well as other measures the applicant is employing to try to minimise the disturbance her dogs are causing on surrounding properties.
In January 2019 the City's officers observed 18 dogs (nine adults and nine pups) present on the Property. The applicant is seeking to keep up to six dogs on what is a residential lot. I accept the evidence of Ms Le Page that the number of dogs being kept at the Property has been an issue for around five years and the applicant has not been forthcoming with the City when it has attempted to investigate how the Property is being used.
The Property, while generously sized, is zoned for residential purposes. I am mindful that the reviewable decision in this proceeding arises under the Dog Act and not under the Planning and Development Act 2005 (WA). However, given the applicant's focus on breeding and training show dogs, it is arguable that the applicant is operating an 'animal establishment' for the purposes of LPS 17.
An animal establishment is defined in LPS 17 to mean:
… premises used for the breeding, boarding, training or caring of animals for commercial purposes but does not include animal husbandry ‑ intensive or veterinary centre;
While this is not a town planning matter, it is relevant that the Property is in a residential area. The zoning of the land is relevant under the Local Law: cl 12.7(2)(a). The Property is also in an area where an 'animal establishment' is a prohibited land use.
Viewed objectively, I consider the 'true nature and character of the use' of the Property is as a dog kennel: Quarry at [38]. While the enclosures are not used for the temporary accommodation of dogs for profit, the dogs that are present are kept not as pets but as part of the applicant's hobby of exhibiting dogs. Save for two, the dogs do not stay in her dwelling. The dogs are confined to the enclosures and sheds but have access to a yard when she is home. In the applicant's own advertising material, the Property is described as a 'small kennel'.
The applicant breeds dogs so that she can win exhibitions. Her hobby is a significant operation which includes breeding the result of which is that pups are regularly being reared on the Property. While pups less than 12 weeks old are not relevant in terms of the application of the Local Law, given the frequency of dog litters, the almost constant presence of pups is relevant in terms of the evaluating the overall impact the Property is causing on adjoining neighbours.
I am also mindful that there is no right to keep more than two dogs at the Property: Limnios at [70]. In considering whether to grant an exemption the City (and now the Tribunal) must be satisfied that satisfactory arrangements are in place to ensure that there will no unreasonable impacts on adjoining properties. In this instance, I am far from satisfied. The applicant's hobby of keeping, exhibiting and breeding dogs is causing undue impacts on surrounding properties and, it appears, this has been the case for some time. I accept Mr Mann's evidence, as set out in the barking diaries, that dog barking is a regular, almost constant, issue at the Property.
As stated, the Property may not be strictly be a kennel, but the reality is, it operates as one. The dogs on the Property are not kept as pets per se but are kept as part of the applicant's dog exhibiting/breeding hobby. The dogs are, at times, confined to concrete enclosures and sleep in a shed. The potential for barking and other issues to cause a material impact on adjoining landowners is plain. I am satisfied that these issues are the reason that five objections were lodged against the Application.
Finally, before I conclude, it is appropriate that I record that I am aware that the applicant loves showing dogs and that this decision will have a significant effect on her. However, the impacts that her dogs are causing on neighbours is not reasonable, nor justified, in what is a residential area.
Conclusion
Having considered the evidence and submissions from the parties, I find that the correct and preferable decision is to affirm the City's decision to refuse the Application.
Orders
The Tribunal orders that:
1.Upon review, the decision of the respondent on 2 July 2019 is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR S WILLEY, MEMBER
6 DECEMBER 2019
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