Background

Ms Stock occupied lot 18 which was on the top level of an apartment block. She had provided food and water to wild pigeons from the balcony of her apartment for a number of years and on some occasions allowed them to enter her unit. This caused pigeon droppings to accumulate on her balcony, other lot’s balconies, and the common property below. In order to clean her property, Ms Stock flood washed her balcony and living room which caused water contaminated with pigeon droppings to leak into other lots and clog the downpipes. Through these actions, the OC alleged that Ms Stock has breached a number of the Model Rules and by virtue of this, s 128 Owners Corporation Act 2006 (Vic) (‘the OC Act’) which requires ‘a lot owner [to] comply with this Act, the regulations…and the rules of the owners corporation.’

Model Rules Breaches

Rule 1.1 prohibits lot owners and occupiers from using a lot in a way that causes a hazard to the health, safety and security of other lot owners, occupiers or users. The Tribunal was satisfied that the actions of Ms Stock created a risk to the health and safety of others as she was causing the spread of contaminated water. Importantly, the OC was not required to demonstrate that a person had become unwell as the potential for it occurring was sufficient.

Rule 4.1(1) prohibits owners and occupiers from obstructing the lawful use and enjoyment of common property by people entitled to make use of it. The Tribunal stated that evidence of people avoiding the area was not necessary. The presence of odours and bird droppings on the pathway below lot 18 sufficiently demonstrated a diminished ability of others to enjoy the common property.

OC Act Breaches

Although the Tribunal found that Ms Stock was in breach of the Model Rules, it determined that she did not breach s 128 OC Act because that section only applies to a lot owner whereas Ms Stock was simply the occupier of lot 18.  

Orders

Ms Stock was ordered to stop providing food, water and refuge to pigeons from her lot.

Takeaways

Furthermore, the case highlights that owners corporations must ensure that the sections of the OC Act which they are seeking to enforce apply to the proposed defendant because not all provisions apply to both tenants and lot owners.

Further information / assistance regarding the issues raised in this article is available from Fabienne Loncar, Partner, Christopher Philactides, Senior Associate, or your usual contact at Moray & Agnew.