QLD Council - How to Rectify Issues with Neighbour's Dog?

[DaveK]

I live in Cassowary Coast Regional Council area, on a rural acreage block. My neighbour has a dog that regards my driveway, which runs alongside the common boundary, as its property. It comes onto the property and barks and snarls at me when I walk or drive past. As it has grown older and bolder, I am now afraid of being bitten. I cannot walk the driveway any more, and cannot get out of the car to check my mail, put rubbish in my bin, or mow the driveway.

I made a complaint to CCRC nearly six months ago. They are still saying the complaint is under investigation - Animal Management (cats and dogs) Act (2008) and refuse to give me a timeframe to complete their investigation. They have told the owner to register the dog and set up a rope run, which they have done, but the dog is never on it. There are no fences. I have sent Council 25 photos spanning 3 months of the dog acting aggressively to me on my property.

I expect the Council to issue a Declaration of Menacing Dog, but they are sticking to "under investigation" and nothing changes. How can I force them to comply with their own legislation?

 

[Danny Jovica]

Well the procedure to force a public authority to act in accordance with the law is called a "Writ of Mandamus". You would file this in the Supreme Court of Queensland. This is a Court Order compelling them to do their job.

 

[DaveK]

Thanks - that sounds pretty full on. Is there some data on how many such Declarations are made by Councils per year, and how long they take to get to that stage? Some independent assessor of dog behaviour? Some independent assessor of Council behaviour?

 

[Rod]

What I did with a nuisance dog, after following all the council steps they ask me to do, after months and months of inaction/no progress, was finally sent the council an email, copied to their legal officer and said they have 14 days to stop the dog or I would be taking the council and the dog owner to court and seeking costs against both of them.

They quickly arranged a meeting with me, outlined the steps they would take and when. I monitored progress and saw they listed a court case against the dog owner. A day before the court case the dog owner removed the dog from the property. Life was good again

You potentially have an action against both the council and the dog owner should you wish to pursue the matter further.

 

[DaveK]

That sounds more like it, thanks. Currently I have asked for a review of the report in response to my complaint against the Council (about my complaint about the dog), which was a report saying just "it's under investigation". When that review is complete, if the response isn't adequate, I will try your approach.

In the meantime, other suggestions welcome.

 

[Rod]

You do not need to wait if they have had adequate time to respond. Plus in your situation there is a danger to you and your visitors, and as such the danger needs to be removed sooner rather than later. The longer you do nothing, the more it seems like there is no danger. I'd also put them on notice saying they will be considered liable for any injuries you receive from this dog due to their failure to act.

 

[@thelawbundle]

DaveK,

You have a few options here:

1) Contact the Queensland Ombudsman (see here) who will likely take this matter up with Council on your behalf. The Ombudsman's office investigates complaints about the decisions (or inaction) of local government agencies for the following reasons:

• improper purpose
• Irrelevant grounds
• Illegal or contrary to law
• Unreasonable
• Unjust
• Improperly discriminatory
• Based on a mistake of law or fact
• Made without giving reasons
• Wrong

2) Make an administrative action complaint with your Council (see here and here). This is a different complaint mechanism to the one than you're probably dealing with (which is likely to be an internal decision review process). Administrative action complaints are prescribed for in the Local Government Act 2009 and will most likely be dealt with by a different Council department than the one you're dealing with (and a more senior executive officer).

3) Request a statement of reasons from Council under the Judicial Review Act 1991 (Qld) as to why they made a particular decision (to do, or not do, something). For that process, see here. Generally, a formal request for a Statement of Reasons must be complied with by Council within 28 days (unless an exemption applies - see Part 4 of the Judicial Review Act).

4) Lodge a Right to Information request with Council to try and locate any internal documents that might give you some ideas as to why Council is acting in this particular manner. For details on that process, see here. A small fee may apply.

5) Finally, if you have no luck with any of the above, consider by-passing Council and taking action against the neighbour directly for "private nuisance" (which will be the case if you can establish that the neighbour is unreasonably interfering with your use and enjoyment of your property).

You should run this past a lawyer who can advise you on the appropriate evidence that you'd need in order to establish this, and also the orders that you might seek (I imagine some form of declaration and injunction, but your lawyer will need to give some thought to the consequences of the injunction not being complied with and how you are going to enforce compliance with those orders in a practical sense).

I think the latter option is a better option to the mandamus idea which has been floated above. "Mandamus" (or a statutory order of review) will be difficult in this circumstance given that any power being exercised by Council is likely to be discretionary in nature. Obtaining an order in the nature of "mandamus" is generally more useful if a body has an obligation to do an act (as opposed to a discretion) and is failing to do so.

For all of the above options, gathering good evidence is necessary. It's good that you have photos, but video recordings of the problems that you're complaining about would be better (but be careful not to obtain sound recordings of conversations that you are not party to or else you might contravene the provisions of the Invasion of Privacy Act 1971 (Qld)).

Maybe you can set up a "go-pro" camera to capture the problem (for example), produce a "time log" of relevant events, have other witnesses swear declarations to corroborate your case etc. Again, a good dispute resolution & litigation lawyer can help you with evidentiary issues - see here.

Hope some of that helps. All the best.

 

[DaveK]

Thank you for that comprehensive reply, which will take a while to digest.

 

[DaveK]

@thelawbundle I would prefer not to take legal action against the dog owner directly, but against Council for not using their powers under Animal Management (cats and dogs) Act (2008) to make a Declaration of Menacing Dog, after which if the owners do not comply by restraining the dog properly, it can be seized. This is the way the process is supposed to work, and Council is not doing its job properly.

I note that your options do not include taking legal action against Council, is that possible? I know Councils are loathe to get involved in legal action if at all possible.

I was told by Council I would have a response from the review of my complaint over Council's lack of action by 3 November. I have received no response.

 

[Rod]

See this: Queensland Ombudsman