VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	vcat reference No. Z892/2018
	
CATCHWORDS	
Review and Regulation List - Domestic Animals Act 1994 (Vic), section 34 – review of dangerous dog declaration made following attack which caused death of dog and serious injury to another – whether to exercise discretion  	

APPLICANT	Saskia Adams	
RESPONDENT	Darebin City Council	
WHERE HELD	Melbourne	
BEFORE	A. Eastman, Member	
HEARING TYPE	Hearing	
DATE of hearing
DATE OF final submissions	7 May 2019
14 May 2019	
DATE OF ORDER	24 June 2019	
CITATION	Adams v Darebin City Council (Review and Regulation) [2019] VCAT 950	

Order

1	The respondent’s decision made on 31 August 2018 under section 34 of the Domestic Animals Act 1994 (Vic) to declare the applicant’s dog, Tyson (blue and grey English Staffordshire Terrier, Microchip No 982000356712696) to be a dangerous dog is affirmed. 

A. EASTMAN
Member			

APPEARANCES:		
For Applicant 	Mr M Faltermaier, solicitor
Ms Saskia Adams, in person	
For Respondent	Ms G Ward, solicitor	
Reasons
1.	On 31 August 2018, Darebin City Council (Council) made a declaration under section 34 of the Domestic Animals Act 1994 (Vic) (DA Act) that the English Staffordshire Terrier dog, which, at the time, was called ‘Tyson’, was a dangerous dog. 
2.	The decision to declare Tyson a dangerous dog followed an incident which occurred on 29 September 2016 (incident). At approximately 7.45 am on that day, 75-year-old Iona Lee was walking her three dogs, on lead, along a street in Fairfield: a 17-year-old Pomeranian, a 12-year-old Shitzu and a 3 ½ year old Pug Cross Jack Russell. Tyson was initially on the other side of the road, off lead and unattended. Tyson ran across the street toward Ms Lee and attacked the Pug, grabbing him by the throat and pinning him to the ground. Upon hearing Ms Lee’s screams for help, two male persons and one female person stopped to help in an attempt to separate the dogs, which they eventually managed to do. Tyson, however, was unable to be physically restrained and he then attacked the Pomeranian by grabbing it on his head.
3.	The Pomeranian was immediately killed as a result of the attack. The Pug was taken to a veterinary clinic for treatment. He had to be anaesthetised for treatment and was found to have sustained a deep wound behind his left ear and a full thickness skin wound on his left cheek, amongst other scratches and marks. His wounds were cleaned, flushed, closed with sutures and a drain tube was inserted.
4.	Following the incident Tyson was seized and held by Council at the Lost Dogs Home.
5.	On 3 July 2017 Mr Aslan pleaded guilty in the Magistrates Court to being a person in apparent control of a dog (Tyson), that did attack two other animals, a dog (the Pug) causing a serious injury and a dog (the Pomeranian), causing death. Mr Aslan also pleaded guilty to being the owner of a dog which was at large or not securely confined. The charges were found proven.
6.	In September 2017 Council proposed to destroy Tyson pursuant to s 84(P)(e) of the DA Act. At around this time, Mr Aslan surrendered ownership of Tyson to Forever Friends Animal Rescue Inc. (FFAR). Ms Adams, the President of FFAR and the applicant in these proceedings, formally became Tyson’s owner, although Tyson remained housed at the Lost Dog’s Home.
7.	Ms Adams made submissions to Council in support of an order that Tyson not be euthanised. Whilst a decision to destroy Tyson was nevertheless made on 16 October 2017, ultimately that decision was set aside on 3 March 2018.
8.	On 19 June 2018 Council notified Ms Adams of its intention to declare Tyson a dangerous dog under the DA Act. Ms Adams filed written submissions opposing that declaration and a panel hearing was conducted on 24 August 2018 at which Ms Adams and two expert witnesses gave evidence in support of the submission that Tyson not be declared a dangerous dog. Having considered all the material, Council declared Tyson a dangerous dog on 31 August 2018.
9.	On 26 September 2018 Ms Adams sought review of Council’s decision by the Tribunal. 
10.	In November 2018 Council agreed for Tyson to be released from the Lost Dogs Home into Ms Adams’ care upon Ms Adams providing an undertaking to Council that Tyson would be kept in accordance with the dangerous dog requirements until the outcome of the Tribunal proceedings. Tyson was, however, permitted to be walked on lead around Ms Adam’s 100-acre rural property without being muzzled.
The Hearing
11.	Both parties were legally represented at the hearing.
12.	Mr Faltermaier, solicitor, appeared on behalf of Ms Adams. In addition to Ms Adams, he called two expert witnesses to give evidence: Ms Patricia Harris of Noble Canine Training & Four Paws K9 Training and Ms Kai Gilhome of Mutt Strutt N’Roll. At the commencement of the hearing Mr Faltermaier informed me that Ms Adams now calls Tyson, ‘Teddy’. Given all the material filed with the Tribunal referred to the dog as Tyson, I will, for ease of convenience, continue to refer to him by that name in this decision. 
13.	Ms Ward, solicitor, appeared on behalf of Council. In addition to relying on the material filed under s 49 of the Victorian Civil and Administrative Tribunal Act 1997 (Vic) (VCAT Act), Council called its officer, Mr Paul Edwards, Team Leader, Business and Performance to give evidence. Mr Edwards was chair of the panel that made the decision to declare Tyson to be a dangerous dog. 
14.	At the conclusion of the hearing, leave was given to the parties to file closing submissions within 7 days. This allowed the parties time to reflect upon the evidence and to clarify and confirm their respective submissions as to the orders sought from the Tribunal. Both parties filed their submissions on 14 May 2019.
Summary of party’s submissions and decision
15.	In his closing submissions Mr Faltermaier submitted that the declaration that Tyson be a dangerous dog was neither necessary nor warranted, that it ought to be set aside, and no other measures were required. He said the factual circumstances of the case were highly unusual and that there had been no previous occasions when Tyson was at large and rushed at or injured a human or animal. Mr Faltermaier said it was similar to the circumstances which arose for consideration before the Tribunal in Ooi v City of Melbourne, (Ooi decision) a case where the Tribunal exercised its discretion not to declare the dog in question to be dangerous and thereby set aside the council’s dangerous dog declaration.  
16.	In the alternative, Mr Faltermaier said that if the Tribunal was of the view that having no measures in place was unacceptable, he submitted that it was open to the Tribunal to declare the dog to be a ‘menacing’ dog, instead of a ‘dangerous’ dog. He said Ms Adams would be agreeable to such a declaration and that it would provide the Council with the assurance of community safety.  Mr Faltermaier went on to state that a menacing dog declaration was not permanent and that ‘it is reasonable to expect that it would not be considered for removal …until appropriate training could be provided to Tyson…’ He submitted Ms Adams would undertake to provide such necessary training if a menacing declaration were made and if the Tribunal ordered such training to be part of an Order. 
17.	Council submitted that the declaration that Tyson is a dangerous dog ought to be affirmed due to:
a.	The serious nature of the attack which resulted in the death of one animal and serious injury to another; and
b.	The concession made by both experts called by the applicant that Tyson has a high predatory drive.
18.	While Council said it was open to the Tribunal to make a declaration that Tyson is a menacing dog, Council contended a menacing dog declaration would only involve the requirement that Tyson be muzzled and on lead at all times when in public, and would not provide adequate protection to the community given the attack occurred whilst Tyson was running at large.
19.	For the reasons given below I have decided to affirm Council’s decision to declare Tyson to be a dangerous dog.
The Evidence
Council’s evidence
The attack
20.	At the time of the incident the person in charge of Tyson, Mr Aslan, was homeless. He had taken Tyson to work with him and placed him in a makeshift enclosure at the rear of the supermarket where he worked. Mr Aslan began his workday and only became aware Tyson was missing when colleagues advised him Tyson was gone.
21.	There was no dispute the incident occurred as described in paragraph 2 above. However, there was some discussion during the hearing as to whether there was any aggression shown by Tyson towards any of the people who assisted Ms Lee during the attack. Further, evidence was led from one of Ms Adam’s experts, Ms Kilhome, to the effect that the witnesses to the incident ‘may have contributed to the severity of the attack’. I will address these matters in my findings below.
Council’s officer – Paul Edwards
22.	Mr Edwards confirmed that the panel formed the view that the declaration be made after conducting a panel hearing and considering the material filed under s 49 of the VCAT Act. 
23.	Mr Edwards agreed, when cross examined, that he had no expertise in animal behaviour, nor did any of the other two panel members. He confirmed the panel’s decision was based on the opinions expressed in the reports filed on behalf of Ms Adams, at the time the declaration was made. 
24.	Mr Edwards said Council only agreed to release Tyson into Ms Adams’ care on the basis that she agreed to keep Tyson as if the dog were declared a dangerous dog, that is, secure within her property at all times and tethered and muzzled when walked outside the property. He agreed that there had been no further attacks by Tyson since the incident. 
25.	When questioned whether he considered it would be appropriate to declare Tyson to be a menacing dog, rather than a dangerous dog, Mr Edwards said his main concern was the viciousness of the attack the subject of the incident, and that it would happen again should the dog ‘get out’. He said he had read the updated expert reports prepared on behalf of Ms Adam’s and that he had not changed his view that Tyson ought to be declared dangerous. 
Applicant’s evidence
Current Owner – Ms Saskia Adams
26.	Ms Adams had prepared a witness statement dated 30 April 2019 which was filed with the Tribunal. The evidence given by her during the hearing reflected and expanded upon the contents of her statement. 
27.	Ms Adams has a Bachelor of Arts (Honours) and a Graduate Diploma in Publishing and Editing. She has been President of FFAR since she founded the organisation in 2011. Ms Adams said she is currently completing the National Dog Trainers Federation (NDTF) qualification in dog training and behaviour and that she has been working with dogs with behavioural challenges for more than eleven years. Ms Adams acknowledged that she had no formal qualifications in dog training or behaviour.
28.	Ms Adams explained the role and work FFAR undertakes in rescuing, rehabilitating and rehoming animals and she said the organisation was respected for specialising in dogs with behavioural challenges. She said she had personally been a foster carer for more than 250 dogs and had authorised the euthanasia of 8 dogs since 2011 whom she believed were dangerous to people and other animals.
29.	Ms Adams explained the lengthy process FFAR conducts in finding a new home for dogs which have been in FFAR’s care. She said the adoption process is extremely thorough and careful, comprising completion of an initial expression of interest form, followed by a phone interview, then a meeting in person. FFAR then undertake a comprehensive inspection of the potential adopter’s home and their fencing. She said full disclosure of the history of the dog is provided and if the potential new owner wishes to proceed, FFAR arrange a meet and greet at the adopter’s home. All pets are adopted out on a four-week trial and owners receive a full refund if they wish to return a pet.
30.	Ms Adams said that Tyson’s new owner would be required to sign a contractual undertaking that they will only ever walk Tyson on lead and wearing a muzzle and that FFAR would stay in regular contact with any new owner and carefully monitor Tyson’s progress.
31.	Ms Adams became aware of Tyson’s case through Mr Faltermaier who had told FFAR that Tyson’s then owner, Mr Aslan, wished to surrender legal ownership to FFAR as he could not provide adequate containment of his dog due to not having secure housing. Ms Adams accepted the request and became legally responsible for Tyson on 21 September 2017.
32.	Ms Adams said that following Council declaring Tyson to be a dangerous dog, Tyson was desexed and he was released into her care as a foster carer on behalf of FFAR on 3 November 2018. She said Tyson has resided on her rural property for the last six months. Tyson is housed in a purpose-built caged pen and only ever walked on lead on the property. I pause here to note Ms Adam’s statement said Tyson was ‘only ever walked on lead when on or off my property and muzzled’. During her evidence, when asked by the Tribunal if Tyson was walked in public, Ms Adams said that he was not as she had a 100-acre property and there was no need to go out in public. I note also Tyson was not required to be muzzled if walked on her property and this was reflected in the videos taken of Tyson by Ms Adams and shown during the hearing.
33.	Ms Adams said over the last 6 months she has undertaken two programmes with Tyson which she described as a ‘counter conditioning’ programme and a ‘desensitisation’ programme. The first programme was designed to change the dog’s perception of an object which caused the dog to be fearful, to one that caused positive feelings in the dog. The desensitisation program was to address the nervousness Tyson had showed around other dogs and his desire to avoid them. In her statement Ms Adams said the desensitisation program with Tyson was with regards to other animals, including dogs, goats, sheep and horses. She said, ‘he has displayed normal canine biological drive towards sheep, for example, but we have been able to distract him and regain his attention at these times.’
34.	Ms Adams also said that she had introduced Tyson to adults, children and ‘even babies’ and seen him to be extremely friendly and affectionate. She described him to be ‘an intelligent dog, eager to learn and to please his handlers’. She said in her opinion, Tyson ‘is one of the least dangerous dogs I have fostered over the last eleven years’.
35.	The Tribunal was shown 11 short videos of Tyson which had been taken by Ms Adams a few weeks prior to the hearing. She said the videos were intended to demonstrate Tyson’s levels of manageability and reactivity in the event of encountering other dogs while being exercised. The videos were taken on Ms Adam’s rural property, where Tyson was being kept. Tyson was at all times on a lead, not muzzled and under the control of a male person known to Tyson. The videos included:
a.	Two videos of Tyson and a small dog – one where the small dog was on leash and led by Ms Adams towards Tyson. When the small dog was at around 4 m away, Ms Adams described Tyson as watching the small dog ‘without reactivity and shows lip licking, a sign of nervousness in dogs.’ When the distance was reduced to around 3 metres away, Ms Adams described Tyson as ‘sniffs the wind for [the dog’s] scent and pulls slightly towards him but still shows no reactivity towards the small dog.’ The other video was described as ‘Tyson and a small dog through fence’ 
b.	Similar videos were taken of Tyson with a large dog and with a medium dog. In the video with a large dog, and no fence between the animals, Ms Adams described Tyson as showing nervousness ‘and decides to walk and hide behind his handler’
c.	Other videos were of Tyson meeting goats, around a horse and sheep, with a toddler and meeting cats. Ms Adams said the videos with the farm animals showed Tyson had little prey drive for farm animals as she said he was keen to past quickly. In the video where Tyson was with the toddler, Tyson was on lead, held by Ms Adams and facing away from the toddler who was being held by an adult. When it was put to Ms Adams that Tyson was held in a way he could not reach around or move towards the toddler she said that was because the toddler, her god daughter, did not like being licked. She said her god daughter had played with Tyson when he was off lead in her house.
36.	Ms Adams said the videos demonstrated that Tyson did not show any aggression towards the other dogs, and that he is not a dangerous dog around other dogs. She said, rather, Tyson showed some nervousness. Ms Adams said Tyson is very manageable on lead and looks to his handler for guidance. When Ms Ward suggested that the incident had showed Tyson displayed aggression, not nervousness, around the other dogs, Ms Adams said she accepted aggression is a common result of dogs at large who were stressed and that they respond in one of two ways, fight or flight. She said, in relation to the incident, it was her view that there were 3 small dogs barking at Tyson, and he responded with fear. She agreed he demonstrated fight, and not flight, in that scenario. Ms Adams 
37.	Ms Adams said the consequences of the dangerous dog declaration remaining would be to condemn Tyson to ‘life in a cage’ or to be euthanised. By life in a cage she said she meant he would be kept for 23 hours and 40 minutes each day in a 10metre square cage, only ever walked on lead and muzzled and denied a great amount of socialisation with people and animals. When cross examined about this statement, Ms Adams agreed there were no time limits specified in the legislative requirements for dangerous dogs and that she was describing life for Tyson if he remained at her property. She agreed that a dog subject to such a dangerous dog declaration was to be kept, when at home, in a secure cage or in the home. 
38.	Ms Adams said there would be little to no chance to rehome Tyson if the declaration remained because the dangerous dog requirements are expensive to meet. In her statement Ms Adams said she was unable to be Tyson’s foster carer indefinitely. She said she was responsible for other animals and had 6 dogs of her own. In this regard Ms Adams was asked whether she had previously made a statement to the effect that she wasn’t prepared to have Tyson interacting with one of her dogs. She said her recollection of such a statement was that she had an elderly Chihuahua, Sharkie, who was old and grumpy. She said Sharkie would not appreciate sharing his home with Tyson who was a ‘bouncy’ dog. She said she didn’t trust Sharkie with Tyson.
39.	Ms Adams’ desire was to find Tyson a loving home with someone who was aware of his history, understood the risks and who would continue with Tyson’s training. She said she would work with any owner he had in the future, that Tyson should always be on lead and muzzled. She said those requirements would form part of the adoption agreement and also that Tyson be confined at all times to the property. She said bull breeds such as Tyson have strength and it was not the same as walking a fluffy dog. The requirement that Tyson be muzzled whilst walked she said was because other dogs could rush up to him and a muzzle would prevent any fight between them.
40.	In her statement Ms Adams said she desired the Tribunal to remove the dangerous dog declaration or downgrade it to menacing so that ‘Tyson can live a comfortable life inside a family home, not a cage, with carefully screened, responsible and experienced adopters.’ In her evidence she said she had three people who were interested in adopting Tyson if the declaration was downgraded to menacing.
41.	Ms Adams agreed that notwithstanding the detailed screening process FFAR employed in order to find a suitable adopter for Tyson, she could not guarantee the future owner will keep and manage Tyson in a responsible manner in order to prevent a future attack. She said she was confident that if Tyson got out that he would not attack another dog, but she could not guarantee that. Ms Adams went on to say she believed all dogs should be on lead when out in public.
Expert evidence
42.	Two experts were called by Ms Adams, Ms Trish Harris and Ms Kai Gilhome. In addition, two reports of Ms Sharon Patton were also submitted.
43.	Ms Trish Harris is a qualified dog trainer. Her statement records that she has been a dog trainer for over 20 years. Ms Harris is the managing director and senior trainer and instructor at Four Paws K9 Training. Her credentials are listed as including;
a.	completed a Certificate 3 in Dog training and Behaviour with the National Dog trainer’s federation in 1999
b.	specialising in aggressive dog rehabilitation
c.	lecturer for the National Dog trainer’s Federation Cert 111 in Dog Behaviour and training Course, covering fear and aggression workshop
d.	conducted behavioural assessments of dogs for both lawyers and councils where dogs are being declared or owners are disputing Council intentions to declare or destroy a dog
44.	A witness statement dated 1 May 2019 was filed on behalf of Ms Harris. In it, Ms Harris said she had assessed Tyson for his behaviour on 23 May 2017 and 26 April 2019. She had prepared three reports, all of which were before the Tribunal.  
45.	Ms Harris said that Tyson’s behaviour had improved in a number of aspects since the initial assessment she conducted in 2017. She said he was not as rude in his approach and that whilst he remained an active dog, he had a good level of impulse control. She said since 2017 Tyson tolerance to touch and mild restraint has improved. In her 2017 report Tyson was described as wriggly and did not want hugs, now she says he is calmer, more controlled. 
46.	Ms Harris said Tyson is definitely not aggressive towards humans. She said she did not think he was aggressive toward other dogs and thought the incident occurred because of his high predatory drive, not because of aggression. She said it was the failure of keeping Tyson safely secure that allowed him to escape and cause the incident.
47.	In her supplementary report dated 18 July 2018 Ms Harris explained the difference between aggression and predatory drive. She said 
Confusion can arise between aggression and predatory behaviour because in both instances the dog can bite, however the topography of predatory drive is different to that of aggression: the mindset and goal of the dog is different.’
…
Aggression and aggressive displays are used to warn off a threat for the purpose of self-preservation… With aggressive displays the dog’s intention is to harm or maim the perceived threat in an attempt to scare it away.
…
Predatory behaviour is different in that the dogs intention is to chase the prey animal down with a goal of catching it….In most cases the dog does not intend on killing the predatory animal but merely takes thrill in the chase and catch. However in some cases if the dog does manage to catch the animal, the force of the hold (grab bite) may be enough to inflict injury on the animal that may result in injury or death….. Dogs with naturally high levels of predatory drive tend to chase things that move.
48.	In her most recent assessment of Tyson, Ms Harris noted the outcomes of a prey drive test. She concluded “Tyson’s interest in the tug toy remains high. He does not generally let go easily but when presented with food, I was able to tempt him to let go.’ Her assessment also involved a dog test. This test was described as providing the dog’s responses and reactions upon seeing a dog at a distance. The dog used was a Labrador and was kept behind a panelled gate. The report concluded ‘Tyson seemed much more relaxed being around the other dog compared to his initial assessment where he displayed lots of avoidance behaviours. In my opinion this is a big improvement in his reaction towards other dogs’.
49.	When questioned about her comment that Tyson did not easily let go when the prey test was performed, Ms Harris said 90% of Staffordshire breeds are bred to ‘hold on’ and have high prey drive. She said they are bred for fighting and therefore have high predatory drive. She said they can be taught to let go.
50.	Ms Harris agreed that a high predatory drive could be problematic if the dog was mishandled or their owner didn’t know what they were doing. On the prospect of Tyson being rehomed, Ms Harris said any new owner would need to be experienced and knowledgeable, someone who had owned a ‘Staffy’ before. She said the dog can be great with people, but the size of other dogs will matter – harm may not be intended but happens.
51.	Ms Harris said she would not be confident if a small little dog was running around Tyson, the incident would not happen again. She said Tyson has improved a lot, but she could not say he would not react the same way again. She agreed if he was in public he would need to be on a lead and definitely with a muzzle. 
52.	Ms Kai Gilhome’s statement records she is a qualified dog trainer. A ‘statement of competency’ was stated to be annexed to her report but was omitted from the copy provided to me. No objection was made by Council to Ms Gilhome’s expertise in undertaking a behavioural assessment of Tyson.
53.	A witness statement dated 1 May 2019 was filed on behalf of Ms Gilhome. In it Ms Gilhome said she had assessed Tyson for his behaviour on 2 October 2017 and 26 April 2019. She had prepared a report after each assessment which was described as a dog behavioural assessment. Copies of both reports were provided to the Tribunal.
54.	Ms Gilhome was taken to the summary of recommendations which she had made at the conclusion of her first report in October 2017. In it she concluded that Tyson ‘can likely be successfully rehabilitated and rehomed under the following recommendations:
a.	A comprehensive training program that includes behavioural adjustment training to improve dog to dog socialisation skills, in conjunction with muzzle training to prevent any unpredicted dog-dog interaction
b.	Provision of appropriate outlets for Tyson’s high instinctual prey drive, under the guidance of a qualified dog behaviourist/trainer
c.	Provision of adequate environmental enrichment and stimulation
d.	Housing in a securely fenced property to prevent any unsupervised dog-dog interactions
e.	Housing with no unsupervised interactions with small children or small animals.
55.	When asked to explain why in her first report Ms Kilhome had recommended no unsupervised interactions with small children, she said that was because she did not believe any dog should be left unsupervised with a child, as she did not trust children. She said it was a generic statement made for all dogs with high prey drive.
56.	Ms Kilhome was asked why she used fake dogs when assessing the dog interaction test, instead of a real dog. She said it was to protect the test dog. Her reports state ‘Worldwide scientific research has shown that dogs will react to a fake dog as though it were a real dog…This testing is limited to a small degree, as an indication only of the dog’s intentions towards other ‘live’ dogs, however it provides valuable insight as to how the dog reacts on visual presentation and the subsequent approach to another dog’. 
57.	When conducting her assessments in October 2017 and again in April 2019 Ms Kilhome used a fake white West Highland Terrier as well as a fake brown and white Jack Russell terrier. The two fake dogs were chosen due to the similarity in size and general appearance to the dogs involved in the incident. For the second assessment, a live neutered male black Labrador Cross was also used in the dog interaction test.
58.	In the second assessment, Ms Kilhome’s report notes Tyson was initially leashed by the tester and held by Ms Adams during the testing with the fake West Highland Terrier. The report sates this was done in order to observe any increase in frustration levels in the presence of a dog unable to approach freely. Tyson was leashed when the fake dog was presented at a distance approximately 5 metres away and then unleashed in order to observe any differing behaviours.
59.	The second report states, after Tyson was untethered and had turned his attention elsewhere, the tester stood near the fake dog and whistled:
Tyson oriented his head towards the source of the sound. Upon spotting the fake dog [Tyson’s body] stiffened and lowered his mouth closing as he ran towards the fake dog, knocking it over. He positioned his body over the fake dog (in order to immobilise any attempt at movement). He began sniffing the fake dog’s rear, ear, and then muzzle, before picking the fake dog up by the back of the neck and bouncing around with it in his mouth slowly shaking his head in exactly the same manner he did with the previous squeaky ball, In exchange for a treat, Tyson relinquished the fake dog immediately. No damage was caused to the fake dog and no aggression was observed. 
60.	As for the interaction with the live dog, the second report states when the tester turned the Labrador to face Tyson head on, Tyson moved himself behind Ms Adams ‘indicating a ‘flight’ over ‘fight’ response…when presented with a potentially threatening encounter with another dog’. The testing dog was a Labrador and there was a fence between it and Tyson during the test. Neither dog was muzzled
61.	Ms Kilhome’s second report stated, in summary and relevantly, that Tyson showed no signs of aggression to any person, fake dogs or live dogs. In relation to the fake west Highland Terrier dog, the report states when Tyson was unleashed, he had entered into ‘a predatory motor sequence (orient-chase followed by immobilise and then grab/bite)’ and that ‘High instinctual prey drive was observed’. The report went on to comment about the difference between prey drive and aggression. It said, ‘Prey drive releases a sequence of ‘feel good’ hormones and is inherently self-rewarding’. 
62.	Ms Kilhome described Tyson as a very resilient dog, with a willingness to be trained. She said the testing made it clear to her that the incident was as a result of predatory drive and not due to aggression. She said Tyson is not a dangerous dog and went on to say that the actions of the witnesses on the day of the incident contributed to the injuries sustained by the other dogs. When asked to explain her view, she said although the witnesses were well intentioned, their actions were misguided. She noted all witnesses said Tyson showed no aggression towards them. 
63.	Ms Kilhome recommended Tyson be rehomed in a safe and secure home, where he was confined to the property. If he is out walking, he should be on a leash and muzzled. Her view was all dogs should be muzzled in public.
64.	When questioned by Ms Ward, Ms Kilhome agreed that between 2017 and 2019 Tyson high prey drive has been maintained. When asked whether she accepts that if Tyson were to be at large and not under human control, it could result in a small dog being harmed, Ms Kilhome said that could occur with any high prey drive dog.
65.	Ms Kilhome agreed she could not guarantee if Tyson was at large again that he would not react in the same way he did at the time of the incident. Upon re-examination, Ms Kilhome said she could not give that guarantee in relation to any dog.
66.	When questioned as to her view of a dangerous dog, Ms Kilhome said one that goes out on the offensive to be intimidating and stand over. Tyson did not show that behaviour at all. She said Tyson must learn to channel high prey drive in a positive way. 
67.	In re-examination Ms Kilhome was asked whether it was possible during the assessment Tyson was aware the fake dog was fake. Ms Kilhome said she thought that was possible towards the end of the testing, but she could not unequivocally say he did.
Patton report
68.	The Tribunal was also provided with a document headed ‘Temperament Assessment Report & Behaviour Management Plan’ of Tyson dated 18 April 2018. The report was not signed but stated to be by Ms Sharron Patton, a qualified psychologist and dog trainer, specialising in canine behaviour modification. A further report, which was signed by Ms Patton and dated 19 July 2018, was said to be an addendum to the April report and was also filed by the applicant. I note Ms Patton signed the report “Psychologist and Dog trainer, Forever Friends Animal Rescue”. Ms Patton was not called to give evidence.
69.	Ms Patton’s assessment of Tyson took place at the Lost Dog’s Home on 18 April 2018. He was described as being happy, excited and friendly dog, of healthy weight, active and alert in his attention. One of the tests undertaken involved approach to other dogs. It was stated that Tyson showed heightened interest in this dog, pulling toward her excitedly. It went on state that he showed no signs of aggression in his interaction with the dog and said his behaviour ‘indicated a level of insolence associated with lack of training which could easily be overwhelming for another dog.’ In summary the report said ‘In a contained environment with clear leadership, Tyson will be a very fun and engaging pet. It is recommended Tyson be rehomed in an environment with no small animals and engaged in lifestyle obedience training including a desensitisation program to high level distraction.
70.	The supplementary report of Ms Patton discussed predation in dogs and predation versus aggression. In her assessment she said whilst Tyson displayed some predatory behaviour towards tug toys, it was less than she had expected to see from a dog of his breeding and lack of training. She said he was easy to distract from the toy and not obsessional with it as many Staffordshire breeds can be. He displayed no aggression in any form during the assessment.

Other material 
71.	Neither party took me to the report of Ernie Frappa of The Dog Bloke dated 20 September 2017, which was included in the material before the Tribunal.  Mr Frappa was not called to give evidence and I note he was not asked to perform a more recent assessment. Whilst I have read the report I place little weight on its contents given it was based on assessment carried out almost 2 years ago, when Tyson had not yet been desexed and when he had been kept in the Lost Dog’s Home for an extended period of time  - which the author noted may have contributed to his behaviour observed on that occasion.  
The Legislative framework
72.	There was no dispute that when exercising its review jurisdiction, the Tribunal stands in the shoes of the original decision maker and is required to make a fresh decision taking into account all of the available evidence and material. The Tribunal is required to consider all relevant circumstances and make the correct or preferable decision.
73.	Accordingly, I have been required to decide:
a.	whether Tyson falls within the DA Act definition of ‘dangerous dog’; and, if so,
b.	whether a declaration that Tyson is a dangerous dog ought to be made.
74.	As the Tribunal noted in Mertens v Knox CC , ‘The second decision is not automatic on finding the definition applies – I have a discretion as to whether to make a declaration under the DA Act. The consequences of such a declaration are serious for the dog and owner alike. A declaration imposes stringent requirements in respect of the way the dog is housed and how he may move around in the community.’ In this regard, where a dangerous dog declaration is made, the owner’s premises must be secure and signed to indicate the presence of a dangerous dog, the dog is to be housed in a prescribed enclosure and must wear a special collar. When in public, the dog must be muzzled and under the effective control of some person by means of a chain, cord or leash.
75.	A ‘dangerous dog’ is defined under s 3 of the DA Act to mean ‘a dog which has been declared to be dangerous by a Council under Part 3’.
76.	Section 34 of the DA Act provides that a council may declare a dog to be a dangerous dog 
a.	If the dog has caused the death of or serious injury to a person or animal by biting or attacking that person or animal: 
77.	Section 3 defines serious injury to mean:
(a) 	an injury requiring medical or veterinary attention in the nature of—
(i)		a broken bone; or
(ii)		a laceration; or
(iii)		a partial or total loss of sensation or function in a part of the body; or
(b)	 an injury requiring cosmetic surgery;

78.	There are procedural steps set out in the legislation for the making of the dangerous dog declaration by Council. There is no dispute these were followed in the present case. 
79.	In terms of the hierarchy of declarations which may be made under the DA Act, a menacing dog declaration sits below a dangerous dog declaration. Section 41A provides
41A	Declaration that a dog is a menacing dog
(1)	A Council may declare a dog to be a menacing dog if—
(a)	the dog has rushed at or chased a person; or
(ab)	the dog bites any person or animal causing injury to that person or animal that is not in the nature of a serious injury; or
(b)	the dog has been declared a menacing dog under a law of another State or a Territory of the Commonwealth that corresponds with this Division.

80.	The requirements of a menacing dog are not as onerous as those of a dangerous dog. A menacing dog declaration does not require the dog to be housed in a prescribed enclosure, but they may require the owner of the dog to ensure that when it is outside the premises, the dog is muzzled and on leash. 
81.	In considering the matters which ought to be taken into account by the Tribunal when determining the question of whether to declare a dog dangerous, I was referred to the decision of Deputy President McNamara, as he then was, in the decision of Feakes v Cardinia SC . The Deputy President referred to the purpose of the DA Act, that is, to promote animal welfare and the responsible ownership of dogs and the protection of the environment by providing for a scheme to protect the community and the environment from feral and nuisance dogs and cats. He then said:
The Act gives no specific guidance as to the considerations which should guide the Council in considering whether to declare or not to declare (a dangerous dog) or the Tribunal on review. The discretion is an open one. High authority tells us that even open discretions have to be exercised by reference to matters that seem appropriately related to the subject matter of the discretion and cannot be exercised on a whim or for matters that are entirely irrelevant.
S. 41A(1)(b) amended by No. 69/2004 s. 27(1).

S. 41A(1)(ab) inserted by No. 44/2010 s. 12.
82.	I was also referred to the decision of Willis v Hume City Council where the Tribunal endorsed the observations of Deputy President McNamara as stated above and set out a list of relevant criteria which may be taken into account when assessing whether to declare a dog to be dangerous. The criteria have been applied in many subsequent Tribunal decisions. The criteria include:
a.	The conduct of the owner before the attack
b.	The circumstances of the attack
c.	The likelihood of those circumstances being repeated
d.	The apparent nature of the dog
e.	The conduct of the owner and those around him
f.	The skill of the owner and those likely to be in charge of the dog in controlling the dog
g.	The conduct of the owner since the accident in attempting to minimise future risk
h.	The insight of the owner into future risk posed by the dog; and
i.	The welfare of the dog’s owner and of others affected by the dog’s behaviour.
Does Tyson fall within the definition of ‘dangerous dog’?
83.	There was no dispute that Tyson caused the death of a dog. The injuries sustained by the Pug, namely, a wound behind his right ear which required sutures and a full thickness skin wound on his left cheek, clearly met the definition of ‘serious injury’ within the meaning of the DA Act. 
84.	Mr Asalan, the person responsible for Tyson at the time of the incident, pleaded guilty in the Magistrates Court to the charges arising out of the incident, namely, being a person in apparent control of a dog that did cause serious injury to another animal and that did cause the death of another animal. The charges were found proven by the Court.
85.	I therefore find that on 29 September 2016 the dog Tyson caused ‘serious injury’ as defined in section 3 of the DA Act to a Pug and killed a Pomeranian dog. Accordingly, under section 34 (1) of the DA Act it was open to Council, and it is open to the Tribunal, to declare the dog Tyson a dangerous dog.
86.	I turn now to the issue of whether or not I ought to exercise the discretion to declare Tyson to be a dangerous dog. 
Closing Submissions
87.	Both parties addressed the criteria which may be considered in determining whether or not to exercise the discretion as follows:
Conduct of owner before the attack
88.	Both parties agreed that this is not a relevant consideration in this case as Ms Adams was not the owner at the time of the incident.
Circumstances of the attack
89.	Council described the attack as serious and unprovoked.
90.	Mr Faltermaier agreed it was an unprovoked attack but said ‘ we refer to the reports of the experts in this matter and the highly unusual nature of the circumstances leading up to the attack’. Mr Faltermaier also referred to the ‘evidence of Ms Gilhome in relation to the possible impact of the actions of the witnesses and the possible unintended consequences.’ He said he made no submissions in relation to whether the incident involved a serious injury or not.
The likelihood of those circumstances being repeated
91.	Ms Ward referred to the evidence given by both Ms Harris and Ms Gilhome. Ms Ward noted Ms Harris’ view that the incident occurred because of Tyson’s predatory drive and not because of aggression, concluding that Tyson has a high level of predatory drive. Ms Ward submitted Ms Harris admitted that she was not confident that if presented with the same situation as the incident that it wouldn’t happen again, particularly if a small dog was running around. Council submitted Ms Gilhome similarly agreed that the incident occurred because of Tyson’s high predatory drive and that he needed to learn how to channel his high predatory drive in a positive way.
92.	Mr Faltermaier submitted that the circumstances were highly unusual and rare and that ‘even if or when Tyson were to be rehomed the likelihood of repetition of the circumstances would be minute’. Mr Faltermaier relied on the rehoming record of Ms Adams and the extremely careful and thorough procedure that FFAR implement before rehoming a dog. He said further that the training Tyson has had and will continue to receive means any future incident is unlikely.
93.	Mr Faltermaier said: 
With respect to the focus by [Council] that it is not possible to provide a guarantee that such an attack would not occur again, we submit this is a crude effort to counter the evidence of Mr Edwards for [Council] in his admissions in cross examination in relation to reasons for the declaration. Simply, other than the attack itself there is no other supportive evidence for the declaration or the likely repeat of such an attack’
The apparent nature of the dog
94.	Council noted the concessions made by both expert witnesses that ‘Tyson has a high predatory drive’.
95.	Mr Faltermaier referred to the comments of the witnesses called by him to the effect that Tyson is ‘a happy, boisterous, good natured dog, that is intelligent and will only improve further with training’. He said Tyson was not aggressive towards humans or animals ‘but like many breeds and his breed has a high level of prey drive’.  Mr Faltermaier said Tyson’s nature has improved with time as evidenced in the reports as he had matured and also, he has been desexed.
Conduct of the owner and those around her
96.	Council said it conceded the conduct of Ms Adams is not being challenged. It noted Ms Adams has housed Tyson on her property since early November 2018 without any reported incident, although Council noted that Tyson was being kept in accordance with the requirements relating to a declared dangerous dog and he continues to be medicated with anti-anxiety medication. Council noted in the event Tyson is rehomed as foreshadowed by Ms Adams it will be the capacity of future owners to responsibly manage him.
97.	Mr Faltermaier submitted Ms Adams should be regarded as the owner for the purposes of this factor and that her conduct has been impeccable. He said on this basis and her evidence in relation to rehoming 3000 dogs, the declaration should be set aside.
The skill of the owner and those likely to be in charge of the dog in controlling the dog
98.	Mr Faltermaier said Ms Adams and any person that she may allow to become the owner of Tyson has or will have the necessary skill to be able to control Tyson.
The conduct of the owner since the incident in attempting to minimise future risk
99.	Mr Faltermaier noted Ms Adams has sought to minimize any further risk by training Tyson to the best of her ability and with the restrictions imposed by the keeping him as if the declaration were in place, namely, the need for Tyson to be leashed at all times other than in the house.
The insight of the owner into the future risk posed by the dog
100.	Mr Faltermaier submitted Ms Adam’s evidence demonstrated ‘a clear insight into the possible future risk posed by Tyson if he is not safely and securely homed and exercised when in public’
The welfare of the dog’s owner and of others affected by the dog’s behaviour
101.	Council submitted the declaration should be affirmed in the interests of ensuring that community safety is not compromised.
102.	Mr Faltermaier submitted there would be a negative impact upon the dog’s owner and others affected by the dog’s behaviour if the declaration were to be affirmed.
Other submissions
103.	Mr Faltermaier submitted that the statutory discretion to declare a dog dangerous must be exercised reasonably. He said Council’s declaration that Tyson was a dangerous dog was not a valid exercise of the power. In this regard I note Mr Faltermaier had spent time during the hearing cross examining Council’s officer Mr Edwards on the reasons relied upon by Council as the basis for determining the dog Tyson to be a dangerous dog. However, as noted by Her Honour Judge Harbison in Romeo v Macedon Ranges SC (Romeo decision) ‘My task is not to assess the wisdom or appropriateness of the council’s decision. My task is to evaluate the evidence which has been put before me and decide the matter afresh’. 
Discussion 
104.	In considering whether to exercise the discretion to declare Tyson to be a dangerous dog I have had regard to the criteria referred to above. 
Conduct of the owner before the attack
105.	As Ms Adams was not the owner of Tyson at the time of the attack, I agree with the parties that there is no need for me to consider this issue. 
Circumstances of the attack
106.	There is no need for me to repeat the circumstances of the attack which have been described in the above paragraphs. I find it was an unprovoked and serious attack, which would have been extremely distressing for all involved, especially the owner of the deceased dog and the seriously injured dog. 
107.	I have reviewed the witness statements included in the prosecution brief. Mr Conley, the witness who had been following Tyson prior to the incident and from whom Tyson wriggled and jumped free, described Tyson ‘immediately attacking’ the Pug and grabbing him on the face. He said ‘I don’t think it got a good hold on the dog immediately as it continued to try and grab the dog’s face and it then was able to grab the dog holding onto its head’ This occurred before attempts were made to free the Pug from Tyson’s grip, or before Tyson was restrained. I refer also to the evidence of Ms Harris who said Staffordshires are bred for fighting and to ‘hold on’. Whilst she said the dog can be taught to let go, the evidence before me was that Tyson was not so trained.  I therefore reject the view expressed by Ms Kilhome to the effect that the actions of the witnesses made the injuries to the Pug more severe and any suggestion that the witnesses in any way contributed to the death of the Pomeranian or the serious injury suffered by the Pug.  
Apparent nature of the dog 
108.	I have placed greater weight on the views and reports provided by Ms Harris and Ms Gilhome, given they attended the hearing to give evidence, and their evidence was subject to cross examination, than the reports of Ms Patton. I note also that Ms Patton is a member of FFAR and therefore cannot be regarded as an independent witness.
109.	I have also placed greater weight on the experts most recent reports which were prepared after assessing Tyson in April this year. I consider these reports to more accurately reflect Tyson’s current nature. In this regard I note that Tyson’s current circumstances are very different to those faced by Tyson  when the first reports were undertaken, including the fact Tyson is no longer contained at the Lost Dogs Home, he has been neutered and he has been provided some training since being under the care of Ms Adams for the last 6 months. 
110.	All experts relied upon by Ms Adams provided similar explanations about the difference between aggression in dogs and a dog with high predatory drive, and the behaviours exhibited by a dog in predatory drive compared to an aggressive dog. An aggressive dog is one that intends to harm the perceived threat. I was told a dog with high predatory drive is seeking the thrill of the capture. Ms Harris explained that in most cases a dog does not intend to kill the predatory animal. She said, however, that if the dog manages to catch the animal the force of the grab may be enough to result in injury and death and that many factors might affect the outcome, including the size discrepancy between the dog and the ‘prey’. All experts agreed predatory drive can be managed and trained and channelled into productive use. In this regard, Ms Harris referred to sniffer dogs and her own German Shephard, dogs with high prey drive but who have been socialised and trained.
111.	Having carried out their respective assessments, both Ms Harris and Ms Gilhome agreed Tyson was not an aggressive dog but was a dog with high predatory drive. They said that the incident occurred because of Tyson’s high prey drive.
112.	It is apparent that the behaviours an animal behaviourist uses to determine if a dog is dangerous, is not the way a dangerous dog is defined under the DA Act. As stated above, under the DA Act a dog may be declared ‘dangerous’ if the dog has caused the death of or serious injury to a person or animal. Whilst the intent of a dog like Tyson entering high predatory sequence may not be to harm or kill the prey, the fact is such a sequence includes immobilising the prey and then grabbing or biting the prey. Such actions can lead to a serious injury or death of another animal.
113.	It was Ms Adams’ view that the incident had occurred because Tyson was at large, there were three small dogs barking at him and he was fearful. She said the videos taken of Tyson show he has low predatory drive and that, if anything, he shows nervousness around other dogs – both large and small. Ms Adams’ views differ to those expressed by the experts as to the cause of the incident and to Tyson’s current level of predatory drive. Whilst Ms Adams has worked with animals in her capacity as President of FFAR and was currently completing a qualification in dog training and behaviour, she agreed she was not yet so qualified. Given the experts qualifications and detailed assessments I prefer their view of the motivation for the incident, namely Tyson’s high predatory drive, and their view that Tyson continues to display a high level of predatory drive.
114.	Further, I found the videos taken by Ms Adams of Tyson with other dogs to be of limited assistance. I do not accept, as submitted by Ms Adams, that they demonstrate a reflection of how Tyson will react if approached by a dog in public. Tyson was under the control of a male handler, on lead, and  on the rural property where he is walked each day by Ms Adams. When a fence was not separating the two dogs, the other dogs were not within reach of Tyson. I agree that Tyson moved behind the handler when approached by the larger dogs and appeared nervous. In my view his reaction to the smaller dog was different to how he reacted to the larger dog in that he moved toward the smaller dog. I agree he showed no aggression when doing so. 
Likelihood of circumstances being repeated
115.	Ms Harris agreed that high predatory drive could be problematic if an owner did not know what they were doing. She said Tyson is great with people, but the size of other dogs around him will matter. Ms Harris was not confident of how Tyson would react if he was around smaller dogs. Ms Harris’ concern as to how Tyson might react with a smaller dog seems to have been demonstrated in the way Tyson reacted to the fake West Highland White dog used in Ms Gilhome’s assessment where he positioned his body over the dog so as to immobilize it and picked the dog up by the back of the neck . Ms Gilhome said Tyson had entered into a predatory motor sequence with high instinctual prey drive observed.
116.	Ms Gilhome’s response to the effect that an attack similar to the incident would not occur in the future was based on her assumption that Tyson would not ever be at large without a muzzle. 
117.	Both experts agreed that when in public Tyson needed to be on lead and muzzled. Both agreed Tyson needed to be kept in a secure environment.
118.	In his submissions Mr Faltermaier sought to emphasis the ‘highly unusual nature of the circumstances leading up to the attack’ which he said was the fact that Tyson’s then carer was homeless and living out of a car. Mr Faltermaier therefore said the likelihood of the circumstances being repeated was minute given the rehoming procedure undertaken by FFAR. The basis of that argument seems to be that the attack occurred because Tyson’s then owner was homeless, and not because of Tyson’s high prey drive. This is contrary to the expert’s evidence. Further, I note that whilst Tyson’s then owner was homeless, he had placed Tyson in what was described as a ‘makeshift enclosure’. Whilst it was not known how Tyson came to be at large, it was not disputed that his owner had taken steps to secure and confine him.
119.	Mr Faltermaier said in his submissions that other than the incident, there is no other evidence to support the dangerous dog declaration or the fact there is likely to be a repeat of the incident. This submission is not supported by the expert evidence concerning Tyson’s high predatory drive, particularly displayed with dogs smaller in size to him. The opinion of the experts that Tyson posed little risk was on the basis the owner securely contains the dog and keeps it on a lead and muzzled when in public.
Skill of owner/ Skill of those likely to be in charge of controlling the dog/ Insight of owner into future risk / Welfare of dog’s owners and of others affected by the dog’s behaviour.
120.	Mr Faltermaier submitted that I should regard Ms Adams as the owner for the purposes of assessing some of these criteria. In relation to others, he submitted the Tribunal could be confident Ms Adams will find a suitable responsible owner and that she has clear insight into the possible future risk posed by Tyson if the dog is not securely homed.
121.	In her evidence Ms Adams said she could not indefinitely keep Tyson and that it was her intention to rehouse him. This therefore requires me to consider these criteria on the basis that I have no information concerning the future owner or the future home where Tyson might live. Whilst Ms Adams has given evidence that she would require any future owner of Tyson to contractually agree to comply with certain requirements, including only walking Tyson on lead and with a muzzle, she agreed that she had no way of guaranteeing the requirements would be met. Furthermore, Council would have no avenue to enforce any failure to comply with those requirements. 
122.	The fact scenario in the Ooi decision, relied upon by Mr Faltermaier, is very different to what is before this Tribunal. In that case there had been a change of ownership a few weeks prior to an incident in which the dog attacked another dog, causing two puncture wounds to the neck of the other dog. The owner of the dog at the time of the attack subsequently relinquished ownership and the dog was rehomed with its initial owner, Ms Sutton. Ms Sutton gave evidence before the Tribunal explaining that she had fostered the dog earlier in the year and that the dog had become part of her family, playing with her two other dogs and children. Ms Sutton had taken the dog back after the incident and it had fitted back into her home, displaying no signs of aggression to other dogs or people. Ms Sutton said she always had the dog on leash when outside the home and she would continue to train the dog. Importantly, Ms Sutton was the current owner of the dog who had no plans to rehome him.
123.	The Tribunal noted in that case the circumstances were ‘extremely unusual’ and that it was because of the strength of Ms Sutton’s evidence that the Tribunal exercised its discretion to set aside the declaration. The Tribunal gave weight to the fact the dog had lived in a busy household with three children and two other dogs and with visitors coming and going without incident.
124.	There is no such evidence before this Tribunal. This is in no way a criticism of Ms Adams. It is not disputed that Ms Adams is a well-regarded operator of FFAR, foster carer and responsible pet owner.  I accept that she would require any future owner of Tyson to securely house him and only walk him on lead and with a muzzle.  However, as stated above, such an agreement does not give Council any means to enforce such requirements. On the other hand, Council noted that the declaration attaches to the dog and not the owner. 
Decision
125.	The incident involved a serious attack which resulted in the death of one animal and a serious injury to another. In my opinion, the most important and relevant issue I must consider in this case in determining whether to exercise the discretion to make the declaration or not, is whether a similar attack is likely to occur if no declaration is made, or if the menacing dog declaration is made instead. 
126.	Based on the assessments carried out and the views expressed by the experts, I am satisfied that:
a.	Tyson is not an aggressive dog;
b.	Tyson has high predatory drive;
c.	The incident occurred due to Tyson’s high predatory drive; and
d.	Tyson continues to have high predatory drive.
127.	Based on the assessments carried out and the views expressed by the experts, I am not satisfied that should Tyson be at large again, a similar attack to the incident would not occur. Whilst the experts found Tyson was intelligent, highly trainable and that he has improved with the training that Ms Adams has undertaken with him to date, I am not satisfied, based on the evidence, that Tyson has learnt to channel his high predatory drive in a positive way. 
128.	The experts and Ms Adams agreed that:
a.	when in public Tyson must be muzzled and on lead at all times; and
b.	Tyson must be securely confined to the property where he is kept. 
129.	I am required to consider the relevant purpose of the DA Act. I must consider what measures will sufficiently protect the community given the identified predatory behaviour exhibited by Tyson which potentially places other smaller dogs at risk should he be at large.
130.	 Ms Adams said it is her intention to rehouse Tyson. Whilst I was told there were individuals who may be interested in adopting Tyson should a menacing dog declaration be made, no further evidence regarding Tyson's future owners or future home environment was provided. Whilst I accept Ms Adams would inspect the home of a future adoptee and require the adoptee to agree to abide by certain conditions relating to the ownership of Tyson, I am not satisfied that relying on the terms of a FFAR agreement is an appropriate way to address the risk posed by Tyson.
131.	In my opinion, in terms of control of the risks to the community, a declaration ensures the requirements imposed by it continue to have effect if the dog is passed onto another owner. I agree with previous decisions of the Tribunal which have emphasised the fact the declaration attaches to the dog, rather than the owner. I agree that a declaration allows enforcement proceedings to be taken in the event the requirements are not complied with.
132.	After considering all the evidence before me I am of the view that the correct and preferable decision is a declaration that Tyson is a dangerous dog ought to be made. I accept the requirements of a dangerous dog are onerous. However, I agree with Council in that I do not consider the requirements of a menacing dog declaration sufficiently address the concern of the risk should Tyson be at large. As I have stated above, in the absence of any evidence of Tyson's future owners and future home, I am of the view a declaration which requires the dog is kept in an enclosure so as to reduce the likelihood of escape, is required.
133.	Ms Adams' evidence was she intends to rehouse Tyson. In his closing submissions Mr Faltermaier said Ms Adams would be prepared to enter into an undertaking to provide training, in the event a menacing dog declaration was made. For the reasons stated above, I do not consider a menacing dog declaration is appropriate, nor do I consider an undertaking is appropriate given it does not attach to the dog. Based on the evidence, were the above criteria assessed as if Ms Adams was the owner, I would still not exercise my discretion to set aside the declaration. Of primary concern in this matter is I am not satisfied an attack like the incident would not occur again should Tyson not be securely confined or on lead and muzzled when in public.
134.	I therefore affirm the decision of Council to declare the dog to be a dangerous dog made on 31 August 2018.

A. EASTMAN
Member