Tasman District Council
Animal Control Subcommittee Agenda – 08 March 2023
2 Reports
2.1
Menacing Dog
Classification
Decision Required
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Report To:
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Animal Control Subcommittee
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Meeting Date:
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8 March 2023
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Report Author:
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Tabatha Kingi, Regulatory
Support Officer
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Report Number:
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RACS23-03-1
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1.1 An
objection to a “Menacing” classification of a dog has been lodged
under Section 33B of the Dog Control Act 1996 (the Act) by Michael and Manuela
Smit and they have requested to be heard.
1.2 “Ruby”
is a 12-month-old Female Rhodesian Ridgeback currently registered to Manuela
and Michael Smit at 35 Redwood Park Road,
Redwood Valley.
1.3 Ruby
was classified as menacing following a dog attacks person incident on 11 March
2022, on Redwood Park Road.
1.4 Actions
available to the Council under The Act range from prosecution and destruction
of the dog; classification as dangerous; imposition of financial penalties and
classification as menacing. The scale of the injury and the associated factors
led to a decision to classify the dog as menacing. This decision is now under
challenge.
1.5 The
Hearing Panel may uphold or rescind the classification.
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That
the Animal Control Subcommittee:
1. Receives
the Menacing Dog Classification Hearing; and either:
2. Upholds
the menacing classification for the dog Ruby owned by
Manuela and Michael Smit or:
3. Rescinds the menacing
classification for the dog Ruby owned by Manuela and
Michael Smit.
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3.1 To
explain the process and reasoning behind the imposition of the
‘Menacing’ classification on the dog Ruby and to allow the panel to
decide on whether this is the appropriate classification in the circumstances.
4 Background
and Discussion
4.1 The
Council has classified Ruby as a menacing dog, in order to do this the Council
must consider the requirements of Section 33 of the Act:
33A
Territorial authority may classify dog as menacing.
(1) This Section applies to a dog that:
(a) has not been classified as a dangerous dog under Section 31; but
(b)
a territorial authority considers may pose a threat to any person, stock,
poultry, domestic animal, or protected wildlife because of:
(i)
any observed or reported behavior of the dog.
4.2 It
is staff opinion that the reported behavior of Ruby warrants the imposition of
the menacing classification.
4.3 On
11 March 2022 at approximately 4pm, the victim, Andrew
Heap, was cycling along Redwood Park Road, Andrew
was approaching Manuela Smit on his bike who was walking two dogs which were
off lead, Manuela put one of her dogs on lead as Andrew
was approaching Ruby went up to Andrew,
and with no warning bit him on the left Calf inflicting a minor scratch and
slight bruising.
4.4 Andrew stopped for
a moment and told Manuela that Ruby had bit him on the left calf, Manuela was
surprised as he hadn’t seen an attack, didn’t hear a scream or
hadn’t seen any response from Andrew,
4.5 After a brief discussion Andrew
biked off.
4.6 Section 5(f) of the Act requires owners of dogs to take all
reasonable steps to ensure the dog does not injure, endanger, intimidate, or
otherwise cause distress to any person.
4.7 Section 52 of the Act requires a dog to be under control at all
times. Under control means that the dog is on a leash and restrained by a
person capable of doing so or that the dog responds immediately to voice, hand,
or other commands.
4.8 Animal Control Officers investigated the incident and obtained
statements from both parties, this included photographs of the bite. When
considering the Council’s response to the incident, staff decided that
the incident did not warrant any punitive action. Staff did however consider
that Ruby posed a threat to the general public and should be muzzled when in a
public area. A Menacing Classification under Section 33 of The Act is a means
by which Council can require dog owners to muzzle their dogs when in public.
5.1 In
considering the objection the Sub-committee may either uphold or rescind the classification.
The Act indicates that the following must be considered:
33B Objection to
classification of dog under Section 33A
(1) If a dog is classified under Section 33A as a menacing dog, the
owner:
(a) may, within 14 days of receiving notice of the classification,
object in writing to the territorial authority in regard to the classification;
and
(b) has the right to be heard in support of the objection.
(2) The territorial authority considering an objection under
Subsection (1) may uphold or rescind the classification, and in making its
determination must have regard to:
(a) the evidence which formed the basis for the classification; and
(b) any steps taken by the owner to prevent any threat to the safety
of persons or animals; and
(c) the matters relied on in support of the objection; and
(d) any other relevant matters.
6.1 An
attack did take place.
6.2 The
attack was unprovoked.
6.3 The
injury was relatively minor.
6.4 The
classification relates to the behavior of the dog and the ongoing threat.
7 Decision on
What Action to Take
7.1 Dogs
attacking persons is considered a serious offence under the Act. The
punitive options available to the Council in this instance are:
7.1.1 Prosecution
under Section 57 (Dogs attacking persons) which carries a maximum fine of
$3,000 plus reparation to the victim. The dog involved must also be
destroyed unless there are extenuating circumstances.
7.1.2 Classification
as “Dangerous” under Section 31. This puts requirements on the
owner to ensure that there is a safe access way to their property, muzzling of
the dog in public, neutering of the dog, increased registration fees and
consent from the Council to transfer ownership to another person.
7.1.3 An
Infringement Notice for $200 for failure to keep a dog under effective
control.
7.1.4 Classification
of the dog as “Menacing”.
7.2 Given the facts, a
decision was made on 21 April 2022 to classify Ruby as “Menacing”
under Section 33A(b)(i) of the Act:
33A Territorial
authority may classify dog as menacing.
(1) This Section
applies to a dog that:
(a) has not been classified as a dangerous dog under Section 31; but
(b) a territorial authority considers may pose a threat to any
person, stock, poultry, domestic animal, or protected wildlife because of:
(i) any observed or reported behavior of the dog; or
(ii) any characteristics typically associated with the dog’s
breed or type.
(2) A territorial authority may, for the purposes of Section
33E(1)(a), classify a dog to which this Section applies as a menacing dog.
7.3 A copy of the Menacing
classification notice and other supporting information is attached to this
report.
7.4 The primary effects of
the classification are that Ruby must be muzzled when in public.
8.1 The
objector Michael and Manuela Smit have the opportunity to make a statement to
the Animal Control Subcommittee Hearing Panel.
8.2 The
Regulatory Administrator will explain Council’s position.
8.3 Michael
and Manuela Smit have the right of reply.
8.4 At
any time, the Hearing Panel may ask questions of those present.
8.5 The
Hearing Panel will go into Committee and make its decision.
8.6 The
objector is informed of the Hearing Panel’s decision as soon as possible
after the Hearing.
9.1 Dogs
attacking persons are considered to have committed a serious offence under The
Act. The punitive options available to the Council in this instance are
shown in Section 7 above.
9.2 Failure
to take any action in such circumstances would be extremely unusual and would
need to be justified by some form of extenuating circumstance, none was found.
9.3 After
the panel makes it decision it must, as soon as practicable, give written
notice to the owner of:
(a) its determination
of the objection; and
(b) the reasons for
its determination.
10.1 The
Council has a responsibility to impose on the owners of dog’s obligations
designed to ensure that dogs do not cause a nuisance to any person and do not
injure, endanger, or cause distress to any person. By upholding the menacing
classification, the Council will be seen to be taking the action necessary to
significantly reduce the chances of Ruby being involved in any future biting
incident. If the classification is rescinded, it would make it very
difficult to consistently deal with any future dog attacks of a similar nature.
11.1 The
Council must, as soon as practicable, give written notice to the owner of:
11.1.1 The
Council’s determination of the objection; and
11.1.2 The
reasons for the Council’s determination.
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1.⇩
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Incident report pg 1 Redacted
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9
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2.⇩
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Incident report pg 2 Redacted
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10
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3.⇩
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Heap Statement Pg 1 Redacted
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11
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4.⇩
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Heap Statement Pg 2 Redacted
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12
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5.⇩
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Smit staement Redacted
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13
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6.⇩
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Dog attack letter from council Redacted
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14
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7.⇩
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Menacing classification pg 1 Redacted
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15
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8.⇩
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Menacing classification pg 2 Redacted
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16
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