The Strata Gavel: How Many Pigeons are Too Many?
The they’re not my pigeons & only just visiting defence doesn’t work this time …
The ongoing tug of war about pets in strata buildings is mostly focused on dogs and cats, but sometimes other species become the focus of strata building problems and disagreements. But, how are those different scenarios best handled? This recent VCAT case provides some clues …
[6.50 minutes estimated reading time, 1301 words]
Introduction
When the animals in your strata building aren’t someone’s pet dog or cat or are not actually living in the building, you’ve got a different kind of strata animal problem that’s not so easy to handle and resolve.
In this recent Victorian strata case, VCAT had to consider just such an unusual situation and the challenging issues facing the stakeholders.
It’s a fascinating case study that reveals how unconventional strata animal cases create challenges and require the problem to be solved via different rules or by-laws.
There’s also some reporting about it in The Herald Sun in the article ‘Pigeon-loving woman banned from feeding birds’.
Whose pigeons are these [and what about the droppings]?
Ms Stock lived in a top-floor apartment at a strata building in South Yarra, Melbourne.
The strata building was unhappy because it said that Ms Stock had breached a wide range of strata rules or by-laws by feeding and caring for pigeons from her apartment which caused a lot of impacts on the strata building and other strata owners and residents.
The strata building said the following about the situation.
That Ms Stock was an unlicensed aviculturist [a person who keeps and rears or breeds birds].
That she has kept pigeons for decades and provides food and water for pigeons on her balcony.
That she washes away pigeon faeces resulting in contaminated water that runs into another lot and outside common area directly below her apartment.
The pigeons are causing significant damage to common property by their faeces.
The waste creates risk to owners and residents due to mould and infection.
She has changed her balcony to feed the pigeons.
Ms Stock has been issued breach and final notices requesting that she cease her activities but has ignored the notices.
including washing away pigeon faeces from her lot resulting in contaminated water running into Lot 12, being the lot directly below her lot, and onto the outside common area.
Ms Stock opposed the application and raised many points in her defence which were very unstructured [she was not legally represented] and are hard to distill here. But, amongst them, she claimed that:
the action against her was ‘vengeance’ and ‘payback’ mostly driven by the chairperson,
pigeons had been coming to the property for many years and before she started living there,
she had taken some steps [a mechanical device and a drone] to keep pigeons away,
the pigeons were clean and not diseased,
some of the pigeons were ‘reincarnations’ of earlier pigeons that had come to the building, referencing an ABC News report called ‘Where have all the sparrows gone?’ and
criticising the strata building chairperson, their lawyer, their plumber
But, Ms Stock also agreed that she sometimes provides feed and water for the pigeons and that some pigeons do come to her lot as a result.
There was also an expert report filed by the strata building from a hygienist who had inspected Ms Stock’s apartment and tested areas in the strata building with findings about moisture, mould, spores, faecal matter, feathers, dander, bacteria, and odour in the apartment, in apartment 12, and, on common property. The hygienist also stated that water that was used to wash away the pigeons’ droppings could be described as ‘Category 3’ water under ANSI/IICRC S500 and water that is grossly contaminated and may contain pathogenic, toxigenic, or other harmful agents.
Interestingly although there was evidence from the strata building about various things indicating Ms Stock was feeding pigeons going back to 2002 and about the impact of the pigeons at the building, VCAT did not accept most of it as probative and relied largely on Ms Stock’s own evidence and admissions about what was going on with pigeons in the building.
There had also been separate legal action against Ms Stock by the local council some years where orders were made that she stop feeding pigeons but the details were not clearly established at VCAT.
There were some issues raised in VCAT about who owned the strata apartment and who should be parties to the case but they were not relevant to the issues.
There was also a messy history to the VCAT case with many appearances and mini-arguments about documents, service, procedures, and more that are also not relevant to the issues but make amusing reading.
VCAT’s decision
VCAT decided the dispute in favour of the strata building making the following findings.
Ms Stock had been and continued to provide water and feed for pigeons on the balcony of her apartment on a daily basis.
A large flock of pigeons [around 20] visit Ms Stock’s apartment.
At least 6 of the pigeons were her ‘pets’ since they were frequent visitors.
Some of the visiting pigeons are wild and feral even though domestication is not relevant to a breach of the rules or by-laws.
Ms Stock did not have an aviary and she is not an unlicensed aviculturist.
Ms Stock washed pigeon droppings, feathers, and feed down the common property drains and sometimes over the sides of the balcony.
The wastewater is grossly contaminated may contain pathogens or toxic or other harmful agents.
There was no proven damage to the building from the birds or the wastewater.
The pigeons cause smells of ammonia and faeces in the common areas.
There was a breach of rule 1.1 as these things caused a health hazard for occupiers.
There was a breach of rule 4.1(1) as these things obstructed the use or enjoyment of the common property pathway below her apartment due to the pigeon droppings and waste.
There was no breach of rule 4.1(4) as this rule did not apply to Ms Stock.
There was no breach of rule 5.1 as the pigeon feeding was not a change in the use of the lot affecting insurance premiums.
There was no breach of rule 5.2 as it was not making a change to the external appearance of a lot.
There was no breach of rule 6.1 as there was no evidence of any guest doing anything to interfere with anyone’s peaceful enjoyment.
There was no breach of rule 6.2 as there was no unreasonable noise or any proven interference with the actual use of common property [but rather to lot property only].
This conduct is not a breach of section 128 as Ms Stock was not a lot owner.
As a result, VCAT made orders:
1. Declaring that Ms Stock breached rules 1.1 and 4.1(1) of the Model Rules.
2. That Ms Stock must cease providing food, water or refuge to pigeons from her premises.
Conclusions
So, it seems that encouraging too many pigeons to visit your strata apartment could be a breach of the by-laws or rules.
But just how many is too many is less clear. Certainly, 20 pigeons is too many even if 6 are considered pets. Perhaps 5-10 is okay.
In reality, the VCAT decision was not based on the pigeons being pets or animals or by applying the animal rule or by-law. Rather, it was all about the impacts of disposing the droppings, feathers, and food down the common property drains and washing them off the balcony by applying more general rules or by-laws to health risks and droppings and waste interfere with the use of the common property.
So, perhaps it’s fine to have plenty of pigeons visit your apartment provided you clean up properly.
July 26, 2021
Francesco ...
KEY DETAILS OF THE CASE
Case Name: Owners Corporation RP000992 v Stock (Owners Corporations) [2020] VCAT 495
The Parties:
Strata Building, Owners Corporation No. RP000992
Owner, Lora Stock