Dogs bark, yes they do, it is a means of communication and can take a number of forms from happy to see you to a warning. However, complaints are often received by Animal Control Units regarding dogs that bark too much. Even as a dog owner I can appreciate the annoyance this creates [although I have a very high tolerance level]. So what are the powers of the local authority?

Sections 55 & 56 of the Dog Control Act 1996 [DCA] deal with barking dogs. These sections grants powers to serve notice and to remove a dog. Of course it is not as straight forward as that.

Section 55 creates the offence [sub section (7)] of failing to comply with a notice within 7 days of receipt, a fine of up to $1500.00, therefore this is a category one [1] offence [fine only], the case can be heard in your absence [so if you do not turn up to court it can still go ahead] but there is no power to order destruction of your dog. N.B. Alternatively you can be issued with an infringement notice for $200.00 as an alternative of being prosecuted [again you can request a hearing in writing should you wish to contest the infringement notice and if you do the infringement is void and the council must then file proceedings [council cannot push on with the infringement so if the council does not commence a prosecution that must be the end of the matter]. Also please note, if you do contest the infringement notice, and council does commence a prosecution [and the matter is proved] you cannot receive a criminal conviction [section 375 Criminal Procedure Act 2011].

So how does a complaint get dealt with. The first matter that all council's should keep in mind is that where neighbours are in dispute, or do not get on, and if either one has a dog this is an ideal tool to create havoc and potentially false and malicious complaints. With this in mind the Dog Control Officer [DCO] who is tasked to investigate "should" keep this possibility in mind and seek to address this with the complainant in the first instance. The DCO will have a wealth of information available to check if there have been previous disputes/complaints not involving dogs as all complains to council are [or should be] recorded. In addition, the surrounding neighbours should be sent a proforma statement to complete [with a return envelope] without identifying the dog and the DCO should also patrol [on foot] at the relevant time[s], other dogs should be eliminated from the investigation.

"Nuisance" is not defined within the DCA but has its origin in old French to mean "hurt". In terms of barking dogs it is likely to be with a private nuisance [as opposed to a public nuisance]. Section 55 (1) gives some further guidance by the use of the words "a nuisance is being created by the persistent and loud barking or howling of any dog [ah I hear some of you say its not breed specific!].

So in short the barking cannot be an isolated incident nor even a few incidents if triggered by surrounding events [for example fireworks, loud neighbour parties, or even a neighbour's cat sitting on the fence with the sole intention to wind up the dog [that last one is a little tongue in cheek but still a possible reason]].

Yes, good dog owners, there are those owners who create the situation where a dog will bark and not stop. For example when the dog's life consists of a pole and chain [why have a dog?], has no exercise and little social contact [in which case if the dog is removed I would tend to support such an action, maybe adoptive owners would give the dog a better life]. Anyway back to the topic in hand:

A DCO, having received a complaint [and hopefully tested the veracity of that complaint by interview of the complainant and checking council records etc.] may enter land [on which the dog is kept] at any reasonable time to inspect the conditions under which the dog is kept [s. 55 (1) (a)] and whether or not the DCO makes an entry [on to the land] give the owner a written notice requiring to take such reasonable steps to abate the the nuisance [i.e. barking] [s.55 (1) (b)]. The same subsection goes on to grant a power to the DCO to remove the dog from the land or premises "if considered necessary".

Two things:- [1] If the dog is to be removed from a dwelling [and the owner refuses to hand over the dog [I will deal with obstruction in a later blog]] a search warrant is required; and [2] "if considered necessary" again is not defined and is, in my opinion, open to wide interpretation. For example, a dog chained 24/7, in poor condition etc would certainly fall within the category [assuming the dog is registered [if not then a separate power is available [s. 42 DCA] however the dog must be returned to the owner should they attend the pound and register the dog within 7 days, so would not alleviate the barking problem].

Section 55 and the Issue of a Notice: Assuming the dog remains at the property, the DCO must have "reasonable grounds" to issue a notice for believing there is a nuisance which should be more than just a single complaint. Assuming there is that notice should set out steps to be taken to stop the barking. The dog owner has seven [7] days to comply with those steps [be careful the seven days can start on the day it is issued even if in the afternoon, so in general no discounting the day of issue nor is it "working days"]. The Notice can be handed to the dog owner or left in a prominent place. The issue of a Notice under section 55 [1] and the hearings committee review [section 55 [3]] are statutory powers of decision and therefore subject to Judicial Review.

Objection to Notice: You can appeal the notice, and if you do so it must be in writing. The effect of such an appeal is to suspend the Notice until it has been determined by the hearings committee. The hearing may confirm, modify or cancel the Notice.

So you have been issued a Notice and you do not file a written objection. When can a DCO seize your dog? Section 56 provides that where a Notice has been issued, not complied with and the DCO receives a further complaint and has reasonable grounds for believing that the nuisance in respect of which the Notice has been issued is continuing and is causing distress to any person - the the DCA may enter any land or premises on which the dog is kept and remove the dog. So hear there are a number of parts to be addressed [1] a Notice has been issued, [2] the nuisance is continuing, [3] a further complaint has been received, [4] the DCO has reasonable grounds that the matter is continuing and [5] it is causing distress to any person.

Where a dog is removed for barking then s. 70 DCA applies [Custody of dog removed for barking]. In short the council may keep the dog until such time as proper provision has been made as set out in the notice [to stop the barking problem]. Whilst under section 70 there is not an automatic right for a council to dispose of your dog after seven [7] days. However, this can still apply if the dog is to be returned, and fees are not paid within seven days [the dog will usually not be released back until all fees are paid].

My advice is to consider is there a barking problem caused by your dog? If so then try to co-operate with the council. A good idea is to check whether your dog barks when you go out, this can be done by asking your neighbours [especially if you have just got a dog for the first time [or another dog]] or setting a recording device.

If you ask for the details of the complainant this will almost certainly be refused and there is the ability to refuse under the Local Government Official Information and Meetings Act. Of course if the matter goes to court then Council will have to call the complainant as a witness [assuming you defend the matter] and at that stage the identity will be known.

There is no doubt that a dog barking without letting up is annoying [even to dog owners]. Often it is a sign of other issues to do with the welfare of the dog.

As usual this is not legal advice and in each case dog owners should obtain specific legal advice.