Neighbour disputes

The issue of adequate control of animals can often be a source of conflict between neighbours, particularly in urban areas. Some animals can be a danger to people or cause damage to the environment and must be strictly controlled. The legal responsibility of owners for their animals depends on the type of animal owned and what is known about the animal.

Sometimes dealing with a neighbour about their animals can make you anxious or uncomfortable and it can be difficult to discuss the problem you’re having. In other cases, you may feel that your neighbour’s complaints are unwarranted.

The Dispute Settlement Centre of Victoria’s website provides some simple and effective strategies for talking to neighbours and tips about what to do when approached by a neighbour.

The law regards some types of animals as naturally dangerous. If you own one of these types of animals (called animals ferae naturae) and it hurts someone, you are totally responsible. It does not matter how careful you were.

The law regards all other animals as domestic animals (mansuetae naturae). Owners are only responsible for injuries caused by these animals if they were in some way negligent or if they knew that the animal had previously hurt someone or was likely to hurt someone. The law calls this the scienter (knowledge) rule. If you keep an aggressive dog to protect yourself or your property, at the very least you should put up a sign warning people about the dog.

The law is still uncertain about what your position is if your dog bites an intending thief.

If your dog escapes from your property and bites a person or animal, you are liable for that action and subject to fines and possible damages claims.

Owners should also be aware that councils regulate the number and the type of animals that may be kept on land. You should check with your local council to find out what its local laws are.

The Domestic Animals Act 1994 (Vic) (‘DA Act’) sets out special rules for dog and cat owners. 

According to the DA Act, the ‘owner’ of a dog or a cat includes a person who keeps or harbours the animal, or has the animal in their care for the time being, whether or not the animal is at large.

Under section 4 of the DA Act, if the owner of the animal is under the age of 18 years, the parent or guardian of the minor is deemed to be the owner for the purposes of the DA Act. Therefore, the parent or guardian can be penalised for any offences attributable to the ‘owner’.

Dogs or cats found at large

Section 24 of the DA Act provides that the owner of a dog is guilty of an offence if the dog is at large outside the owner’s property, or not securely confined to the owner’s premises.

If the dog is at large during the day, a penalty of up to 6 pu may be imposed and this may be increased to 10 pu if the dog is at large at night.

Cats are dealt with differently. It is an offence for a cat to be at large in a municipal district where an order has been made by the council under section 25 of the DA Act. That order can declare that the presence of cats in specified areas is prohibited. If that order has been made, then cat owners can be guilty of an offence and be liable to pay 1 pu (first offence) and up to 3 pu (further offences).

Under section 26 of the DA Act, orders can be made prohibiting the presence of dogs and cats in certain areas, and fines can be imposed for breaching of the order.

Your local council may impose conditions such as:

• the method of restraint of dogs or cats; and
• the times during which the presence of dogs and cats is prohibited in specified areas.

You can be fined for breaching these conditions.

If a cat or dog is found at large in an environ­mentally sensitive area, an authorised council officer may be able to destroy the animal.

Further, the owner of livestock for farming purposes may destroy any cat or dog found at large in the place where their animals are confined or, if the animals are tethered, in the vicinity of such animals.

Dog attacks

There are a number of prescribed offences that may be committed by owners, should their dog rush at, attack or injure someone or another animal. The penalties for each vary depending on whether or not the dog was classified as a ‘dangerous dog’ under the DA Act, or if there was any deliberate act on the part of the owner in either training or encouraging the dog to attack.

It is an offence to urge a dog to attack a person or another animal (s 28 DA Act). The penalties are severe, with fines of up to 120 pu and/or imprisonment of up to six months.

Under section 29(6) of the DA Act an owner of a dog is also guilty of an offence if their dog rushes at, attacks, bites, worries or chases any other person or animal. The penalty for this offence is up to 10 pu. 

However, the offence is not ‘made out’ (i.e. considered to have taken place) if the dog was reacting to teasing, abuse or assault of it or a person known to it, or if a person or another animal was trespassing on its premises (s 29(9)).

An owner of a dog found guilty of a dog attack may also be banned from owning a dog for up to 10 years or have conditions placed on their dog ownership (s 84XA).

If a dog bites you or rips your clothing, you should immediately report the attack to the local police or council. They can impound the dog. They can also take the owner to court and have them fined. You are also entitled to claim from the owner your out-of-pocket expenses for damage caused by the dog.

There are criminal offences for failure or recklessness in controlling a dangerous, menacing or restricted breed dog that kills a person or may place another person in danger of death (ss 319B, 319C Crimes Act 1958 (Vic)). Penalties range up to 10 years’ imprisonment.

Dogs or cats creating a nuisance

Under section 32 of the DA Act, the occupier of any premises where a dog or cat is kept is liable to a fine of 1 pu if the animal creates a nuisance by either:

• injuring or endangering the health of any person;
• persistently creating noise, by barking or otherwise, which unreasonably interferes with the peace, comfort or convenience of any person on any other premises.

Menacing and dangerous dogs

Section 34 of the DA Act empowers a council to declare a dog to be dangerous in circumstances where, for example, the dog has attacked or injured a person or another animal or been trained to do so. The council can also declare a dog to be a ‘menacing dog’, under section 41A if it has had to issue two or more infringement notices upon the owner because the dog has rushed at or chased a person. The council has to give the owner seven days’ notice, containing reasons in writing, if it intends to declare a dog to be dangerous or menacing. It is possible to appeal to VCAT against a decision by the council to declare a dog to be dangerous or menacing.

The owner of a dangerous or menacing dog has obligations under the DA Act to make sure that members of the public are not attacked by such a dog. These may require the owner to:

• display warning signs on their property and a warning tag on the dog;
• desex and microchip the dog;
• restrain the dog in the manner prescribed by the Act (both on and off the owner’s property); and
• notify the council within 24 hours if ownership changes or the dog goes missing, or if it rushes at or chases a person.

If a dog that has been classified as ‘dangerous’ attacks, rushes at or menaces another person or animal, then the owner of the dog may be guilty of an offence and subject to fines of up to 120 pu or six months imprisonment (s 29(2)).

There are also rules about registering and owning restricted breed dogs. Restricted breed dogs are breeds of dogs that are considered dangerous and are defined in section 3(1) and include, among other breeds, the Pit Bull Terrier. There can be substantial penalties for non-compliance with the special rules regarding these breeds of dogs. It is a criminal offence (with a maximum six months’ imprisonment or 60 pu) for any person to breed a restricted breed dog (s 41EB).

Guide dogs

Visually or hearing-impaired persons are entitled to be accompanied by a genuine guide dog at all times and in all places. Guide dogs must be registered, but this is free (s 7 DA Act).

Dog infringement notices

The ‘parking ticket’ procedure applies to most offences under the DA Act. The notice is issued by a council officer and specifies details of the dog or cat, the offence and the penalty.

For more information, see Chapter 3.1: Fines and infringements.

If your animals stray onto your neighbour’s land, it is likely that you will be responsible for any damage that they cause. It does not matter that you were not negligent or didn’t know what was happening.

You have a defence where the act results from ‘an act of God’ (due to natural causes and which no human foresight could have guarded against, such as a wild storm blows your fences down) or the act of a stranger. Damage includes damage to land, crops, people and livestock (including mis-breeding in the case of livestock).

If your neighbour tells you that your animals have strayed and you do not go and collect them, the law allows your neighbour to keep your animals until you have paid for any damage that they have caused.

People who own animals (including dogs) are under a duty to take reasonable care to see that their animals do not cause any damage by straying onto a highway. If reasonable care is not taken and damage results, the owner is liable to pay compensation.