Recent media and social media concerns, from dog owners, regarding a letter sent out by the Christchurch City Council to dog owners of dogs classified as menacing whether, by breed, type or behavior stating muzzles must be used even within your own home. As a result, I provided an interest group with an urgent legal opinion, with that group's kind consent I am able to publish that opinion. Of course, the matter has since been addressed with CCC admitting the likelihood of a conviction being upheld was remote.

16 April 2018

Re: Section 33E Dog Control Act 1996 and Private Property and Dwellings.

Introduction:

By letter, dated 6 April 2018, Christchurch City Council [Animal Management] [Council] informed dog owners of their responsibility under section 33E of the Dog Control Act 1996 [DCA].

Council’s letter stated, due to recent serious dog attacks within the City, the Councils require that all dogs classified as menacing must be muzzled at all times which includes on your own property and includes inside the dwelling house, except when they are securely contained within a cage or motor vehicle [sic].  

The letter does not allude to any supporting arguments or interpretation of the DCA that leads Council to conclude s. 33E applies to private secure gardens and residential dwellings. In the media Council states, it is seeking legal advice as to whether they are correct in its interpreting of s. 33E.

It is useful, for ease of the reader, to set out the relevant parts of s. 33E DCA: 

33E Effect of classification as menacing dog [Relevant Parts]

[1] If a dog is classified as a menacing dog under section 33A [classified on behavior, so may be any breed of dog] or section 33C [classified on breed or type as listed in Schedule 4 to the DCA], the owner of the dog-

[a] Must not allow the dog to be at large or in any public place or in any private way, except when confined completely with a vehicle or cage, without being muzzled in such a manner as to prevent the dog from biting but to allow it to breathe and drink without obstruction;[1] and

[5] Subsection (1) (a) does not apply in respect of any dog or class of dog that the territorial authority considers need not be muzzled in any specific circumstances (for example, at a dog show).

Is Council’s interpretation of s. 33E (1) (a) is correct?

Discussion:

  1. This matter turns upon statutory interpretation.
  1. The letter sent to dog owners was unclear as to exactly what part of the definition Council relies upon to support its legal interpretation that muzzling applies to a residential dwelling. By implication, the letter includes muzzling, 24 hours per day [on Council’s interpretation no account has been taken for removing the muzzle to feed the dog, which arguably if Council’s interpretation was legally correct, would be an offence]. Therefore, this opinion will consider “public place”, “at large” and “private way”.
  1. A territorial authority [TA] must abide by the empowering statute, in this case, the Dog Control Act 1996 [DCA]. All powers to enforce dog control matters are contained within the DCA [and any bylaw authorised by s. 10, 10AA and 20 DCA [a bylaw is a discretion a dog control policy is not]]. Therefore, Council's powers are restricted to those authorised by the Dog Control Act.
  1. Section 33E sets out a statutory requirement for dog owners [and dog walkers [who may not own the dog]] to muzzle any dog classified as menacing. However, s. 33E (1) (a) sets out those places when this requirement applies namely 'at large' or 'in any public place' or in 'any private way'. Of note s. 33EC DCA creates an offence of failing to comply with s. 33E(1)(a) or s. 32(1)(b).[2]
  1. It is useful to discuss s. 33EC at this stage. If a dog is found unmuzzled in breach of s. 33E(1)(a) the dog owner may be fined up to $3000 upon conviction in a District Court. This is also an infringement offence under Schedule 1 with a fine of $300.
  1. 33EC does not create a power for the District Court [if the matter proceeds by way of prosecution] to order the destruction of the dog. Indeed, whilst there is a power for a dog control officer to seize the dog [s. 33EC (2)(a)], the dog can only be held until the dog owner has demonstrated a willingness to comply [in this case muzzling] at which point the dog must be released back to the dog owner [with all fees for impounding, sustenance etc. being paid].
  1. The dog may only be disposed of by way of s. 71A (2) DCA [which applies to a dog seized for a breach of s. 33E], which grants a power to the TA to dispose of the dog if [1] the dog owner fails to demonstrate a willingness to comply [with muzzling], and the TA has informed the dog owner in writing of the right to appeal under s. 71B [an appeal to the District Court], and the appeal has not either been lodged or has failed, the TA may then dispose of the dog which may include humane destruction [there are other requirements but are not relevant for this purpose of this advice].
  1. Therefore, the lack of the Court’s power of destruction signals Parliament did not consider the offence [no muzzle] to be as serious as an attack [s. 57 & 58] which requires the Court to order destruction [of the dog] or s. 57A [Rushing] which grants a discretion to the Court to order destruction.
  1. Public Place: is defined within the DCA as meaning: a place that, at any material time, is open to or is being used by the public, whether free or on payment of a charge, and whether any owner or occupier of the place is lawfully entitled to exclude or eject any person from that place; and

includes any aircraft, hovercraft, ship or ferry or other vessel, train, or vehicle carrying or available to carry passengers for reward.

  1. This definition is clear in that a public place must be open to the public [a street or council park], it can be on payment [a sports stadium], the owner is lawfully entitled to exclude or eject [a pub or restaurant]. A dwelling or private garden of a dwelling does not align with this definition. The ability to eject is only referring to the above places as can be shown by the wording any person from that place. It also extends to public transport and private motor vehicle only if for reward [a taxi or potentially an Uber].
  1. At-Large:[3] The DCA does not specifically define “at large”, however a dictionary definition [of which there are many on line] defines “at large” as- (especially of a criminal or dangerous animal) at liberty; escaped or not yet captured. ‘the fugitive was still at large’.[4] In isolation, the view would lean towards a person [or dog] not being confined and able to escape.

However, whilst no specific definition within the DCA exists it is mentioned in the following sections.

  1. Sec. 2 [Definitions]: “Owner” uses the words “….at large or in confinement”. A brief review shows a separation of “at large” and “confinement”, with confinement being read as including a secure backyard or dwelling.10 (3) (e)-Duty of Territorial Authority to adopt Policy on dogs. Here “at large” is raised in a discussion regarding a Council bylaw which is restricted as to what areas a bylaw may address, for example, dog exercise areas [public place].

     Sec. 20 Dog Control Bylaws­- “at large” is referred to about roaming dogs [which can only be in a public place or a third persons private garden or private way [see below re private way]]. 

     Sec. 32 & Sec 33E – with reference to dogs classified as dangerous and menacing [the focus of this advice].

     Sec. 52-Control of Dogs Generally- this section talks about “…at large in any public place”, this clearly links “at large” with a "pubic place" which of course could not include a private secure             backyard and not a dwelling.

    Sections. 53, 59, 60, 61 and 62 again refer to “at large” in a way that can only be interpreted as meaning a public place or third-party garden [for example a neighbour’s garden who does not            give consent for the dog to be there or a private way].

It is clear that “at large” can only mean a public place or a place other than the dog owner’s own secure property and dwelling. It follows that s. 33E can not apply to muzzling for a dog owner’s           secure garden and dwelling.

  1. Private Way: Is defined in the DCA by referring to s. 315(1) of the Local Government Act 1974 which means: any way or passage whatsoever over private land within a district, the right to use which is confined or intended to be confined to certain persons or classes of persons, and which is not thrown open or intended to be open to the use of the public generally; and includes any such way or passage as aforesaid which at the commencement of this Part exists within any district.
  1. As stated the definition does not refer to private land nor dwellings. The definition does refer to private land but only in the context of any way or passage which leans towards the ability to pass over the private land. To attempt to include a private fenced garden [and dwelling] in this part of the definition has no statutory authority and indeed is contrary to the High Court’s interpretation. 
  1. The High Court has examined this issue in Mitchell v R [2015] NZHC 460. In short, this involved a dog classified as menacing [and therefore subject to muzzling as per s. 33E], it is useful to deal with this decision in some detail.
  1. Sprocket, a blue bull mastiff dog (owned by the appellant), is classified under s 33A of the Dog Control Act 1996 (the DCA) as a “menacing dog”. On 29 March 2013, the six-year-old complainant was playing in the appellant’s property with her three children which was a regular occurrence. Sprocket came into contact with the complainant, apparently at the back door to the appellant’s house, and bit her leaving five puncture wounds on her chest, around her breast and armpit.[5]
  1. The appellant was charged with an offence against s 33EC and s 33E(1)(a) of the DCA in that: The defendant Teresa Bronwyn Mitchell the owner of Sprocket a blue male Neapolitan mastiff classified as a menacing dog pursuant to section 33 by the Invercargill City Council on 30 January 2013 did not have Sprocket muzzled in a private way.[6] 
  1. Of note Council worded the charge defining the garden as a private way.

The appellant appeals against her conviction on the grounds that:

The Honourable District Court Judge has misdirected himself as to the meaning of “Private way” resulting in His Honour mistakenly finding the dog was unmuzzled in a “private way” when in fact it was unmuzzled while confined to an enclosed area as required by the Dog Control Act 1996.[7] The appeal raises two issues: (a) What is the meaning of “private way” in s 33E(1)(a) and was Sprocket in a private way when he bit the complainant?

  1. As noted above “private way” is defined to have the meaning given to it by s 315(1) of the LGA.4 The definition of “private way” in s 315(1) is for the purposes of Part 21 which relates to roads (other than regional roads), service lanes and access ways. Section 315 also contains definitions of “access way”, “private road”, “road”, and “service lane”. A “private road” is defined in s 315(1) as: any roadway, place, or arcade laid out or formed within a district on private land, whether before or after the commencement of this Part, by the owner thereof, but intended for the use of the public generally. Both private roads and private ways cross private land: the difference between them relates to the rights of access by the public.
  1. The Judge further considered the involvement of a local authority over private ways and private roads [s. 348 348(1) prohibits the laying out or formation of a private way or granting or reserving a right of way over any private way without the prior permission of the Council in the district]. In granting such permission the Council may under s 348(2) impose conditions: as to widths, levels, entrances, courses, formation, cost of formation, maximum number of buildings to be erected fronting any such private road or private way, minimum distances between any 2 buildings, position of building line, and otherwise in all respects whatsoever as the council thinks fit.
  1. No such power exists regarding a private garden or indeed a dwelling. The treatment of private ways in both the LGA [and indeed the Resource Management Act 1991] points to a formal process of either permission or approval for the establishment of a private way similar in several respects to the treatment of private roads. What is envisaged is a recognised thoroughfare over private land which is intended for the use of identified classes of persons.
  1. The concept as used in both the LGA and the RMA does not envisage that entire properties would be private ways simply by being private land. Indeed, a fully fenced property, by virtue of its enclosed state, would defeat the object of a private way, namely to provide a thoroughfare. The definition in s 315(1) means any “way or passage whatsoever over private land” [Mitchell v R [para 27]].
  1. Given the incorporation of the s 315 LGA definition in the DCA, the Judge considered that the same interpretation of private way should apply in the case of the DCA, absent some clear indication in the legislation or the legislative history of a different meaning being intended to apply [Mitchell v R [para. 28]].
  1. Concluding Mitchell v R His Honour Judge Brown stated at [33] “In the case of dangerous dogs there is a requirement that they be kept in a securely fenced portion of the owner’s property: s 32(1)(a). There is no equivalent provision for other dogs, including menacing dogs. Such dogs are required to be confined within the land or premises of their owners in such a manner that they cannot freely leave the land or premises: s 52A(2)(b). Sprocket was so confined at the time of the incident.

[34] In my view the references to “at large or in any public place or in any private way” are to areas to which the public or certain agreed persons may have access and which are distinct from              private land over which no agreed right of passage has been defined and granted.

[35] Consequently the backyard in which the incident concerning the complainant and Sprocket took place was not in my view a private way within the meaning of that term in s 315(1) of the LGA. Hence there was no obligation on the appellant to have Sprocket muzzled in that place [my emphasis added].

[36] Accordingly the appeal is allowed, and the conviction is quashed.

Conclusion:

  1. Christchurch City Council is wrong in its view that “at Large” extends into the back garden and by extension the dwelling.
  1. In the alternative, Christchurch City Council would be wrong in its view that “private way” extended into the back garden and by extension the dwelling.
  1. A Dog Control Officer does not have a statutory power to enter a dwelling [except in one unique circumstance only related to an immediate attack] to seize a dog for failing to wear a muzzle. A search warrant is required.
  1. Therefore, a dog, either classified as dangerous or menacing, is not required to wear a muzzle in a secure private garden that forms part of the dwelling, and a dwelling is clearly not a “private way” and certainly not within the definition of “at large”.
  1. To further the argument if a dog is required to wear a muzzle in a dwelling why is the same dog not required to wear a muzzle when in a vehicle? It simply does not make sense as a dog is secured in a dwelling and a vehicle, but in the view of Council the dog is secure in a vehicle [no muzzle] but not a dwelling [muzzle required]. S. 33E (1) (a) specifically states a muzzle is not required in a vehicle.

[1] My emphasis added.

[2] S. 32(1)(b) addresses dogs classed as dangerous and is the same as menacing dogs in that they cannot be at large or in any public place or in any private way [there is no difference between dangerous and menacing as regards muzzling]. Dog walkers are dealt with via s. 33F which requires the dog owner to advise the dog walker of the requirement for a muzzle.

[3] After this advice was drafted and sent CCC clarified they were relying upon “at large” to support their position.

[4] https://en.oxforddictionaries.com/definition/at_large.

[5] Mitchell v R [2015] NZHC 460 at [1].

[6] A further charge under s. 58 [a serious injury] was dismissed.

[7] The enclosed area referred to was the back garden.