Ms Rogers Applies for Further Time Within Which to Comply With Court Orders
10When the final orders were made in the principal judgment, the council urged upon the Court a very short time frame for compliance in light of the extensive delay caused by Ms Rogers in the finalisation of the proceedings. The Court declined to make the orders as sought by the council noting the following (at [63]):
63 It was not a matter of controversy that Ms Rogers was a person of modest means and that Happy Paws is a non-profit shelter relying on the goodwill of volunteers and donations from the community to operate. In these circumstances it is appropriate to afford a degree of latitude to Ms Rogers in the time required by her to give effect to the recommendations contained in the ANMP and this is accordingly reflected in the orders made by the Court below.
11The Court therefore made the following orders in the principal judgment (at [64]):
64 In conformity with the reasons above, the orders of the Court are therefore as follows:
Note: unless otherwise specified, all references to "Happy Paws Haven" or "Happy Paws" in these orders excludes the areas marked "House" and "House Yard" on the site plan annexed to this judgment at 'C' ("the site plan").
(1) no later than six months from the date of these orders:
(a) the existing sheds or enclosures, including the three small runs labelled "single run" on the site plan and any enclosure used to house puppies, in which all dogs other than the applicant's, Ms Sally Rogers, personal pets are kept at Happy Paws Haven ("Happy Paws") located at 140 Tindal Road, Eatonsville, New South Wales, must be properly modified for noise attenuation in the manner recommended by the Court appointed acoustic expert, Mr Neil Gross, in Mr Gross' Third Acoustic Report filed 18 July 2013 at page 6 of that Report, and divided in two to allow for individual sleeping quarters for each dog; and
(b) the areas described on the site plan as "Dog Yard 1" and "Dog Yard 2" shall be divided into yards 1A, 1B, 2A and 2B in accordance with the site plan by way of solid dividing fences at least 1.8m high, such fences to be located in accordance with the lines marked on the site plan and the size of those areas shall remain at all times in accordance with that which is noted on the site plan;
(2) any existing shed or enclosure at Happy Paws which is not noise attenuated in accordance with Mr Gross' recommendations referred to above in order (1)(a) is not to be used for the keeping of dogs;
(3) no later than three months from the date of these orders, Ms Rogers must make contact in writing with Clarence Valley Council Animal Pound, the Queensland and New South Wales branches of the RSPCA, the Queensland and New South Wales branches of the Animal Welfare League or any other organisation of her own choosing and offer for re-location to any facility controlled by one or more of those organisations and under their terms, a sufficient number of dogs presently housed at Happy Paws to enable her to comply with these orders;
(4) no later than six months from the date of these orders, Ms Rogers must cause to be removed from Happy Paws a sufficient number of dogs and puppies (that is, dogs between eight weeks and three months old) such that only the following numbers remain in the areas prescribed for dog keeping by Dr Gaille Perry in the Amended Noise Management Plan filed 18 July 2013 ("the ANMP") (as those areas are delineated on the site plan):
(a) up to two dogs in yard 1A;
(b) up to two dogs in yard 2A;
(c) up to two dogs in the area described as the "Middle Yard";
(d) up to two dogs (or compatible pups over three months old) in the area described as the "Rear Yard"; and
(e) one litter of puppies in the puppy pen, being the two sheds adjacent to the "Kitten Room";
(5) no dogs shall be housed overnight at any time in the areas described as 1B and 2B on the site plan;
(6) Ms Rogers must not increase the number of animals kept at Happy Paws beyond the limits set in these orders unless and until a kennel block is constructed at Happy Paws in compliance with the recommendations of Dr Perry in the ANMP;
(7) Ms Rogers must notify the respondent, Clarence Valley Council ("the council"), of any proposal to construct further accommodation for dogs at Happy Paws (such as a kennel block or an additional enclosure), and where necessary, any development consent must be obtained prior to the commencement of its construction;
(8) dogs must at all times be housed and managed at Happy Paws as follows:
(a) alone or in compatible pairs (compatibility should be determined on a leash in a neutral place, with dogs meeting on a walk, then returning and entering the shared housing together, to keep arousal levels manageable);
(b) in separate pens constructed in accordance with order 1(a) above;
(c) all dogs must be confined to sheds between the hours of 6pm and 7am on weekdays and 6pm and 8am on weekends and public holidays, with each dog in its individual sleeping quarters within those sheds;
(d) no Happy Paws dogs may be kept in the areas marked "House" or "House Yard" on the site plan;
(e) unless they are being exercised or otherwise attended to, puppies at all times must be kept in the two sheds adjacent to the "Kitten Room" on the site plan;
(f) the area described on the site plan as the "Holding Yard", including the three "single run" enclosures noted therein, shall only be used to house dogs for a period of less than a week upon their first arrival to Happy Paws and these areas must not be used for housing dogs to be retained at Happy Paws over the longer term;
(g) the behaviour of each dog must be investigated, either during a period in isolation or at a veterinary practice using a validated behaviour assessment test before acceptance. Written records must be kept of this test for all dogs. Dogs that do not pass this assessment must not be accepted for rehoming;
(h) written behaviour records, including barking issues and how they are managed, must be kept for each dog;
(i) all dogs must be trained to the cue "quiet" using positive reinforcement methods;
(j) behaviour modification plans must be written for all dogs showing any undesirable behaviour, and continuing records must be kept to monitor their progress;
(k) a daily enrichment program for every dog which includes food, toys, training and enclosure enrichment must be initiated and written records kept so that the manager can ensure that all dogs have appropriate enrichment;
(l) all dogs must receive a minimum of 15 to 20 minutes of varied individual attention every day. This should include a walk, some training and a passive activity (grooming, stroking, or massage);
(m) Ms Rogers must actively recruit new foster carers to reduce the number of dogs held at the facility;
(n) an education program must be initiated for volunteers and foster carers, incorporating information on the care and management of dogs and particularly the care and management of "special needs" dogs;
(o) dogs which have been held at the shelter or in foster care for two months must be re-evaluated for suitability for re-homing; and
(p) no bitch with unweaned puppies (under eight weeks old) is permitted to be kept at Happy Paws and Ms Rogers must remove any bitch and her unweaned puppies from the property to a foster carer until such time as the puppies are eight weeks or older;
(9) no later than six months from the date of these orders Ms Rogers shall have caused to be implemented all measures specified in orders 1 to 8 above, at which time Ms Rogers must notify council in writing as soon as practicable of having done so;
(10) within 28 days of the notification referred to above in order (9), Mr Gross must, to the extent he has not already done so in his Third Acoustic Report, comply with order 18 of the consent orders made on 29 October 2012;
(11) if within six months from the date of these orders Ms Rogers has not caused to be effected the necessary changes to Happy Paws, including modification of the sheds/enclosures and dividing fences, so as to enable her to house dogs in a manner which is compliant with the orders above, she must as soon as practicable remove a sufficient number of dogs from Happy Paws in order to effect compliance;
(12) at the expiry of six months from the date of the making of these orders, dogs other than Ms Rogers' personal dogs are to be registered in the name of "Happy Paws Haven" in accordance with these orders;
(13) as soon as practicable at the expiry of nine months from the making of these orders, Ms Rogers must provide in writing to the council evidence of the following:
(a) the names and microchip details of all dogs housed at Happy Paws;
(b) behaviour records and modification plans for all dogs housed at Happy Paws; and
(c) records of behavioural testing for any new dog accepted for housing at Happy Paws;
(14) at the expiry of nine months from the date of these orders, the council shall be entitled to inspect the property by appointment only for the purpose of verifying the extent of Ms Rogers' compliance with these orders;
(15) order 1(a) of the orders made by Pepper J on 21 August 2012 stating that "the applicant is to have no more than 32 adult dogs (that is, dogs older than six months old) on the property the subject of these proceedings at any one time" is vacated;
(16) the parties have liberty to apply on three days' written notice to vary these orders provided sufficient cause is demonstrated;
(17) the cost of the First, Second and Third Gross Acoustic Reports, the Noise Management Plan and the ANMP is to be shared equally by the parties and, to the extent that they have not already done so, the parties shall make such payment to Mr Gross and Dr Perry within 30 days, or such further period as the experts may allow, of any invoice being issued by either expert; and
(18) the exhibits are to be returned.
12Ms Rogers now seeks an additional three months to complete the matters referred to in those orders. Thus the orders that need to be completed within six months of the date of the judgment (that is to say, by 14 May 2014), would now need to be completed by 14 August 2014 and the orders that need to be completed within nine months of the date of the judgment, would now need to be completed by 14 November 2014.
13The council opposes any extension on the basis that, first, sufficient time has already been given to Ms Rogers to comply with the orders as reflected by the time frames given in the orders. And second, in light of the considerable delay to date by Ms Rogers in these proceedings, the Court can have no confidence that even if the extension were granted that the orders would be complied with.