Ringo

I've found a lot of councils don't know very much when it comes to the Companion Animals Act and POCTA - they sometimes need to be hit over the head a few times with how procedures outlined in both are to work before they come round.

For all the problems people have listed the use of a video camera to show the behaviour of the people concerned I've found to be useful and usually (not always) has two effects - the behaviour stops/moderates and and is good to show the powers that be what you are complaining about - with a picture worth a thousand words it's a bit hard saying you football club isn't doing anything as they are shown the video recording.

As it stands at the moment the only way for the RSPCA to gain access to a persons records held by Dogs NSW is to serve a search warrant on them specifying what they want. Can't be refused. But they have to get the search warrant first which is usually associated with an investigation of some kind being undertaken by the RSPCA. And the affadavit filed at the court to get the search warrant becomes public information so is viewable by any person to see what information was relied upon to obtain the search warrant. It has already been done once by the RSPCA on Dogs NSW Why they do this when the companion animals act microchip register is the primary proof of ownership for a dog in NSW is a little hard to fathom. And as you are required to microchip your animals that register has the same information. On the other hand some larger breeders do not do what the companion animals act says and register the microchip straight into the details for the new owners, not what the act says. Some designer dog breeders do the same thing as well.

• Council is currently in the process of examining the potential for changes to the current Local Environmental Plan, provisions for ‘animal boarding and training establishments’. • *This project is at ‘research stage’ as Council is seeking to implement a process of prioritization of actions for control this is clear and accountable to the community. • *More specifically, it is seeking to identify the threshold beyond which the keeping of animals requires development consent and is seeking to set minimum standards for the siting, design and operation of animal boarding establishments. • The board of directors has successfully defended several members with regards to their immediate difficulties; however, sadly there are others who have not yet achieved anything like satisfactory outcomes. • We will continue to do our best to work on your behalf to overcome the outrage many of our members are experiencing. Tom Couchman President, Dogs NSW. If this council is seeking to amend their LEP then as every council in NSW has the same LEP to work from now they will have to put a case to the NSW DLG and also NSW department of planning to convince them it should be changed because they have 'special circumstances' One of the reasons the new LEP was created was to make all of NSW come under the same planning structure, not the ad hoc procedure they had before hand. Perhaps they should be again referred to what the NSW LEC thinks, although on the surface this council seems to have some difficulty realising they don't actually make laws they are only a consent authority.

If they don't take notice of the interpretations of the NSW Land & Environment Court on this very subject and follow what they have said then it won't make any difference the legislation has been interpreted by a court who is allowed to set case law ie how they interpret the law is how the people who enforce it must also interpret it from that point onwards. So if the changes don't reflect this above interpretation then they still won't hold up when push comes to shove in the NSWLEC over whether a development application is needed or not ie the council will lose. Hope Dogs NSW are making submissions at the same time on the subject. For those who are interested there is also a revue going on at the moment to the NSW Local Government Act as well & I hope Dogs NSW hae made a submission to this. Now all that needs to happen is for the referendum later this with the federal election to pass and we recognise local government in the Australian Constitution and our worst level of government will become a real monster.

No legislation formed as yet (that we know abt) As to the CCTV surveillance by the local council - you are able read the findings on the case law website if you choose the admin tribunal option - outlines powers available, how they are to be utilised etc The council could not show that by having the CCTV recording in the areas they did it was actually contributing to what they are legally allowed to do, hence no CCTV recording. It was an another example of a local council in NSW interpreting the law one way, someone else interpreting it another and the umpire giving a ruling. Nothing new in that idea, it's how our system works. Pity they don't take notice of all the relevant rulings handed down in other matters though, they might save themselves some money.

Actually inez that's not correct As to the open window go in and take a dog ??? think they were lucky it didn't go further (expecially as the dog was deemed OK !!!! ) Again not quite correct Yes in certain circumstances they do need a search warrant And it is more than 'just an opinion'

Out of curiosity under what conditions do you all think the RSPCA are able to seize an animal and what power are they actually exercising ?

Interesting council giving permission to people to breed puppies on suburban house blocks in NSW (All states have different rules because all councils have different powers across Australia) If they call it a commercial operation then they can't give permission because it is PROHIBITED. For non commercial of the same activity they have no control over it under the LEP as that activity is not mentioned, ie it is an activity/land use they have no control over. Despite what many councils in NSW think they are in these circumstances what is called a consent authority. In other words if they have power over a land activity/development they may approve the activity or not with/without conditions) If they have no control over the activity then they cannot approve/disallow something they have no control over. It is something councils find hard to grasp at times. All LEPs in NSW are now basically the same with the same land zoning and what is allowed in each of these zones, what is prohibited and if it is not mentioned then they have no control of the activity. Sounds like the ranger was talking up what he wanted to do and talking down what he was actually able to do. And the NSW Land & Environment Court has again reinforced this view in regards to what councils may or may not have power over. They just at times have great difficulty grasping the idea that they don't make all the rules all the time and there is actually a higher authority that can over rule them. Comes a lot of the time from the inexperience of the people you deal with.

Steve Without going into the particulars of the particular case I doubt whether most people have permission from their local council to breed dogs where they live as - Unless you live in an area zoned for a '..dog boarding, breeding, training establishment for commercial purposes..' then they are not allowed to and the council cannot give permission for an activity that is prohibited in their land zoning. The DogsNSW code for breeding covers the DPI Code of Management for Cats & Dogs and to comply with one you comply with the other. Then it all comes back to how a '. dog boarding, breeding, training establishment for commercial purposes..' is defined and councils take one definition, the Land & Environment Court has ruled there is a difference between these activities where it is commercial or non-commercial and I know which one the legislation will support.

Like I said you don't give up

Freedom of Information (Government Information Public Access Act - GIPA Act - NSW) only works for government bodies, not private enterprise. And it doesn't work if you give up - remember there is more than one way to skin a cat (apologies to cat lovers) You keep going until you find the right way - image the uproar in the press/TV if a minister was not responding to such a simple matter - they would draw the line that they would be no better in matters of much greater importance (relevantly speaking)

You keep going, and when you start lodging complaints with no reply or inadequate reply from the minister then you start opening up other options that all government departments come under because you are now dealing with the government not a private enterprise granted a right by the minister.

The DoH has an appeal mechanism for all their decisions. She needs to go past the local office about the procedure. Regarding the local council she needs to get some advice regarding the paperwork the council gave her saying she had a limited time to reduce the number of her dogs. Without seeing any of it they would have most likely mentioned the Local Environment Plan to her in the same breath as commercial breeder of dogs because she takes money. They may have mentioned their Local Council Orders saying there was a limit to the number of dogs a person could have - these order don't carry any enforceable restrictions with them in other words they aren't worth the paper they are written on. If they have imposed a limit on her dogs then it may have been done with the Local Government Act using Section 124 or 129 ?? (Can't remember exactly which) but that sets out a strict format that must be followed, they just don't turn up and say this is what is to happen or else.

If you have a complaint about the RSPCA in NSW then the only recourse you have is lodge a written complaint with the minister concerned who is responsible for them. He is the one that gives them their power to do what they do.

Regarding the pensioner in Liverpool was it the Dept of Housing or the local council that gave her that ultimatum. If it was the DoH then she could have appealed the decision made by them. If it was the local council then she had an even better chance of telling them to leave her alone. There is a set procedure council have to go through and if it was them who made that decision then it sounds as though proper procedure was not followed by them. Like I keep saying, the vast majority of ethical HOBBY breeders do not come under the council Local Environment Plans which is what they pull out saying you a a commercial animal establishment as you sell some of your puppies for money, with all the ramifications that follows from this. And this has been backed up by the NSW Land & Environment Court which has drawn a distinction between commerical & non-commercial animal establishments. Following on from this as non-commercial animal establishments councils have no control over the activities as this does not come under the Local Environment Plan. Councils are only consent authorities, if an activity comes under their control then they may impose conditions on it. If an activity does not come under their control then despite what most councils think, they have absolutely no control over it whatsoever. this applies to ALL activities not just breeding dogs.

Looks like Victoria took notice of the Irish experience. See there is no part 2 for the Bateson Report - guess too many bridges were burnt in the first one Interesting in the discussion paper the first two objectives of the task force is in relation to impounded/euthanised dogs and not one mention of any rescue organisation other than AWL & RSPCA who deal with only 25% of such dogs with 75% dealt with by local councils. What is wrong with fighting to have DogsNSW as the main registry for ALL dogs in NSW - saves the problem of which data base your microchip details go on as is the case now. At least tracking dogs would become a lot easier. The idea just goes against the recommendations of the Taskforce which is why the reports were published to gauge public opinion before decisions are made. If the wrong ones are made by self interest groups then at some point it will end up in court with one or more challenges to the legislation which may lead to the whole thing starting again. Pity they made no reference other than in passing as to how the Victorian legislation is travelling. Only mention was the Queensland TRIAL. Guess that agreed with their ideas.

Britney - you need to read the case decision carefully,look at what was being said and the distinctions being drawn between commercial and non commercial activity.

Yes Britney that is how it works. They have a definition they work from. The LEC has ruled that there is a difference between commercial dog breeding, boarding etc and the same activity that is not considered as commercial and councils must take notice of this, they cannot just lump everyone into the same category anymore and say bad luck that's what we think so that is the way it is. If anyone has started searching the NSW LEC database of case law and cases you will find cases where commercial operations have been approved and also disallowed. There are also cases where councils have applied the same rules and not been successfull at the end of the day. Apart from saying there is a difference between commercial dog board, breeding, kenneling and training and the same activity that is not commercial the court also considers the intent of the activity in question and also how it is carried on ie how much change os made to the property in question to accomodate the activity. Think of commercial boarding or breeding establishments with the scale, the number of kennels, how the animals are kept and generally what takes place in such establishments. Then think of the true hobby breeder of pedigree dogs, how they carry on the same activity and why they do it. That is one of the principal things the LEC has drawn a distinction about. And remember from reading the definitions in the LEC it covers ANIMALS, not just dogs. We have had issues with our local council yet within walking distance there is fellow who breeds and hand raised birds for sale to the public. He advertises on his front fence, place a advertising board on the footpath out the front of his premises yet never seems to have any problems. When this was mentioned to our council the reply was that 'we deal with every matter on its merits' - how they would not interpret this activity as ..' animal boarding, breeding, training establishment for commercial purposes' is beyond us yet that was there reply. In other words selective application of the same rules which leads to very dangerous ground.

Attached are some of the definitions used in NSW Local Environment Plans LEP Dictionary - Definitions.doc

Sorry attachment is here for Land Use Zones LEP Land Use Zones.doc

In the attachment is the current 2012 Local Environment Plan for The Hills Local Council in Sydney. The important parts to look at are: Land use zoning at the start with permitted/prohibited land use Definitions for land use at the end of document. All councils have this standard LEP now, the maps for each area are just different.

You all need to go and read the NEW Local Environment Plans for your council areas - they are or will soon be all the same with the same definitions for land zoning in each. As I said the aim is to have the whole state of NSW covered by the same zoning definitions not the ad hoc zoning that exited beforehand. Dog breeding is no longer defined as intensive agriculture as it was in the past and the new LEPs recognise this as does the Land & Environment Court - if you go back far enough in LEC court decisions you will find it regarded as this in their decisions. Dog breeding other than ..' boarding, breeding, training for a commercial purpose' gets no mention whatsoever in the LEPs. So as a consent authority council has no power over the hobby breeders (and I mean the true hobby breeders not the ones who hide behind this and breed a litter every month) So it comes down to proving your activity is not commerical in nature and the NSWLEC has made a decision which is a binding interpretation of the legislation that there is a difference between commercial and non commercial aka hobby breeders of dogs. The definition from the NSWLEC relies on more than what councils do ie money changes hands therefore it is commercial in nature hence prohibited development/activity in zones where this is activity is prohibited. Despite what local councils think they do not make laws they only interpret & enforce the ones what come under their jurisdiction. When matters go before say the LEC and a interpretation of legislation is handed down it is a binding interpretation for that legislation so the old interpretation goes out the window and the new interpretation must be adhered to or they will loose the next matter at the LEC that again relies on the old interpretation against the new one. Parliaments make laws, enforcement bodies execute them and the judiciary interpret them. That's how it works in Australia. To Britney I would be asking for, in writing, what your council is relying upon to say you are dog breeding for a commercial purpose and to also quote where they have got this definition from. In reply I would be telling them the NSWLEC has interpreted commercial breeding to be more than just the exchange of money and see what happens. To everyone else you should be confirming with your local council what your zoning is and then looking at the NEW Local Environment Plan for your council to see what activities are allowed, either by consent of the council or allowed by the definition in the LEP for your zoning. In relation to DOGS NSW knowing abt what the LEC has handed down I would have thought so, but it appears not from what the solicitor at the meeting had to say.

In response to Britney comment - the Guide to Breeding Cats & Dogs in NSW allows you to run them all together without kenneling etc - it is listed in there with the requirements. The Companion Animals Taskforce discussion with regards to a breeders licence system yes it slanted towards commercial operations. But they are (at least someone on it) is aware the NSWLEC has drawn a distinction between commercial breeding and breeding that is not. The information Steve is talking about with regards to Dungog & Wollongong (?) councils appears in one form or another on most council websites. They regard the definition of commercial as one where money changes hands, even for one puppy. The Australian Tax Office has a limit on what you are able to earn from a 'hobby' before they become interested. Seems to vary to anywhere between $15,000 to $25,000 depending on who you talk to (And that is profit they are talking about) under this and they are not interested. It costs them money. Local Councils also put out what are called Local Government Orders (LGOPs) on matters that come under their control. A lot have put out LGOs that say you cannot have anymore than 2 dogs, 4 dogs, 2 rabbits, 2 guinea pigs etc depending on where they are. They also tell people these are enforceable and the law. No they are not a LGO comes with no enforcement attached to it if they want to take action then they have to go back to the Local Government Act, section 124 ??? I think from memory that covers animals. The Department of Local Government also issues notices and circulars to councils about how to carry on business. They have issued several that say DO NOT use planning laws to limit the number of cats, dogs on a property use other means at your disposal. Again a lot of councils ignore this, can't quite work that one out - you governing department say don't do something yet councils continue on their merry way doing the opposite. I will see if I can find the references to these I have. And remember it is your intent that is also very important - the people flying under the radar having a litter of pups every month will be found out and they will be in trouble even under the current system. 1/2 Litters a year and you are in a whole different ball game, despite what your council might tell you. One other piece of advice for those who are having issues with their local council, make a freedom if information request for the information they have on the issue ie dogs at your address, it costs $30 or $40 dollars and they must give you everything unless it falls under strict criteria , it is always interesting to read what they have to say. Most councils will have how to do this on their website,labelled GIPA (Government Information Public Access) Act . Just as a side issue from the report, councils deal with 75% of dogs that are impounded, the RSPCA deals with 20% and the AWL 5%. For cats much closer, councils 55%, RSPCA, AWL & CPA 45% between them. So for dogs at least those who have the least to do with them when impounded will now become the ones who decide what happens with breeding.

As has been said before yes local councils in NSW impose building codes upon development they have control over. These are outlined in the Local Government Act (LGA) & Local Environment Plan (LEP) for each council. Councils have been defined in the New South Wales Land & Environment Court (NSWLEC) as Consent Authorities ie They are able to consent or not to development that comes under their control. These as I have said are outlined in the LGA and LEP. The NSWLEC HAS drawn a distinction between '... dog boarding, breeding, training for a commercial purposes' and the same activity that is NOT for a commercial purpose. In other words they have told councils that as the dog breeding, boarding, training is NOT for a commercial purpose they do not have any control over the activities, therefore in such circumstances they cannot prohibit or allow it at their discretion as it is an activity that does not come under their control. Most councils don't like this and continue to tell people the reverse. I have even read where they have declined other development that also does not come under their control but people have not appealed the matters to the NSWLEC. To find out these court decisions, which are binding interpretations of the legislation as the NSWLEC is able to set what is defined as case law, search for NSW Case Law, choose the Land & Environment Court from the court list and search for dog breeding. You will be able to read about developments that ended up here. And remember the shelters you have for your dogs are not permanent structures, they are to comply with POCTA which is defined more in the Guidelines for Breeding Cats/Dogs issued by the department of primary industries and they do not change the original land use for your block of ground.