Background
Ms Stock occupied lot 18, which was on the top level of an apartment block. For a number of years, she had provided food and water to wild pigeons from the balcony of her apartment and, on some occasions, allowed them to enter her unit.
This caused pigeon droppings to accumulate on her balcony, the balconies of other lots, and the common property below. To clean her property, Ms Stock flood-washed her balcony and living room, which caused water contamination with pigeon droppings leaking into other lots and clogging the downpipes.
Through these actions, the body corporate alleged that Ms Stock breached several of the Model Rules and, by virtue of this, s 128 of the Owners Corporation Act 2006 (Vic) (‘the 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 Ms Stock’s actions created a risk to the health and safety of others by spreading contaminated water.
Importantly, the body corporate was not required to demonstrate that a person had become unwell, as the potential for it to occur was sufficient.
Rule 4.1(1) prohibits owners and occupiers from obstructing the lawful use and enjoyment of common property by people entitled to use 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 breached 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
This case demonstrates that the potential to expose another person to a health and safety risk is sufficient to find a breach of Model Rule 1.1 and that evidence of actual harm is not required. Furthermore, the case highlights that body corporate must ensure that the sections of the OC Act that are seeking to enforce apply to the proposed defendant because not all provisions apply to both tenants and lot owners.
If you would like further advice on body corporate management matters, James can be contacted by email at JCollier@moray.com.au or by telephone +61 3 9600 0877 Moray and Agnew.
