Review of Dog Control Bylaw
From: Karen Anderson
Dear Dunedin City Council,
My preference is to receive the requested information by email.
Section 158 of the Local Government Act 2002 provides a local authority must review a bylaw no later than 5 years after the date on which the bylaw was made.
Section 159 of the Local Government Act 2002 provides that a local authority must review a bylaw no later than 10 years after it was last reviewed as required by section 158.
Section 160A of the Local Government Act 2002 provides that if a bylaw is not reviewed as required it will be revoked 2 years after the last date on which the bylaw should have been reviewed.
According to information provided by the DCC the 2004 Dog Control Bylaw was made on 16 August 2004, effective September 2004. Pursuant to s158 that means it was required to have been reviewed no later than 15 August 2009. If that did not occur, pursuant to s160A it was revoked effective 16 August 2011.
The issue was raised throughout the dog control review and ignored. It was addressed several times in meetings arranged by the Chief Executive and a Councillor, and was addressed directly with the DCC Chief Executive on 8th October in a meeting arranged by a Councillor.
By email 12 December 2016 the CEO summarised legal advice apparently obtained during 2014. In essence that was that s159 required bylaws to be reviewed every 10 years, s160A provided 2 years from that date for the review to occur and Councils must complete a s155 determination within 12 years of the previous bylaw commencing.
By email dated 19 December 2016 I reiterated the meaning of s159 was not disputed. I confirmed the issue being raised was the s158 requirement to review a bylaw within 5 years, before commencing the 10-year cycle of reviews required by s159. I also noted s160A did not provide that a s155 determination must be made within 12 years because that section did not deal with the determination, and actually established that a failure to review within the required time-frame meant the bylaw was revoked two years later.
I also identified the information that would allow the matter to be “conclusively resolve[d]” which was evidence a review commenced no later than 15 August 2009, or evidence s158 did not apply so the bylaw was exempt the five year review requirement. The request was ignored. I was led to believe it would be one of the issues addressed in discussions going forward. That has not occurred.
Accordingly I have been asked by members of the Dunedin Dog Bylaw Group to request:
(a) The Council records that prove the 2004 bylaw was properly reviewed no later than 15 August 2009. Note that as a review of the bylaw triggers a review of the Policy, the provided information will need to confirm the Policy was also reviewed within that time-frame.
(b) The legislative provisions or case law that exempt the Dog Control Bylaw from the s158 five-year review so there was no requirement to perform it.
All information made public about the 2016 review refers to a "s155" determination. That is not consistent with the determination requirements specified by section 10AA of the Dog Control Act 1996.
Accordingly I have been asked by members of the Dunedin Dog Bylaw Group to request the Council records that will satisfactorily confirm the correct determination occurred within the required time-frame. Note the determination must be supported by probative evidence, so we expect the provided information will include the evidence Council relied on when making the determination.