STATE ADMINISTRATIVE TRIBUNAL

[2009] WASAT 140

DOG ACT 1976 (WA)

CC 471/2009

16 JUNE 2009

MR C RAYMOND (SENIOR MEMBER)

22/07/2009

Perth

Application granted Decision under review set aside and decision of Tribunal substituted, granting exemption subject to conditions

B

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DAMIEN CORRIGAN
ANIKA CORRIGAN
SHIRE OF NORTHAM

Dog Act 1976 (WA)
Application for review of decision refusing exemption from local law limiting number of dogs to be kept
Nature of evidence upon which Local Government and Tribunal may act

Dog Act 1976 (WA), s26, s26(3), s26(5)

Nil

The applicant applied under s 26(5) of the Dog Act 1976 (WA) to review a decision of the respondent. The respondent had decided to refuse an application for exemption from the limitation on the number of dogs which could be kept on a property in accordance with a local law.The respondent's rangers, who had investigated the circumstances in which the dogs were being kept, and who had sought comments from neighbours, recommended that the application be granted. The respondent rejected the application on grounds which were inconsistent with, or entirely unsupported by, the information provided to the Council by its officers. On review, no evidence could be provided to support grounds based on recent dog attacks, nor on the basis that the approval would increase the workload on Ranger Services.The Tribunal had to determine whether the remaining grounds were justified, namely, in effect that the applicants' residential lot was not suitable for the keeping of three dogs and that the impact of keeping three dogs on the applicants' property would have an adverse effect on the lifestyle and amenity of adjoining landowners.The Tribunal commented generally upon the standard of evidence on which it would be appropriate for a local government and the Tribunal to act in relation to this type of case.A proper analysis of the material placed before the Council, and before the Tribunal, demonstrated that there was only one objector, whose objection was based primarily on the extent to which the applicants' dogs barked, whereas 11 other neighbouring landowners had no complaint. There was evidence of relationship difficulties between the objector and the applicants. The Tribunal found that, on a balance of probabilities, the dogs did not bark excessively and that, in any event, arrangements had since been made for them to be contained in a fenced area well removed from the objector's property.The Tribunal also found that the applicants' lot of some 4,741 square metres was much larger than any of the adjoining properties; it had been inspected by the Shire of Northam's rangers who had recommended approval of the application and there was no evidence to suggest that it was in any way inadequate for the keeping of the dogs.The Tribunal, accordingly, granted the application for review, set aside the respondent's decision and substituted the Tribunal's own decision granting the approval subject to certain conditions.