Community cry fowl over wild pigeons
The South Australian Civil and Administrative Tribunal (the Tribunal) has recently upheld a decision of the Eastern Health Authority (the EHA) to issue a Notice under the South Australian Public Health Act 2011 (the Act) to deal with public health risks associated with the keeping of a significant number of pigeons in a residential dwelling.
In this article, we explore the decision of the Tribunal in the case Fateh v Eastern Health Authority.
Background
On 19 October 2020, the EHA was notified of the Applicant feeding and housing wild pigeons in and around her dwelling by occupants of surrounding houses, including specific concerns in relation to the risk posed to their children.
At the start of 2022, the Applicant had approximately 60 pigeons living in her house. The pigeons were allowed free access to all areas of the Applicant’s premises, and she would feed them both inside and outside of her house. Pieces of wood and boxes were set up for the pigeons to perch and nest in. Investigations revealed pigeon faeces being on cardboard boxes, glass, shower screens, in the kitchen and on the walls. The premises was described as ‘so unsanitary that no-one should be living there’, with foul odours smelt from outside the premises.
Despite multiple attempts to support the Applicant in finding ways to reduce the health risk, the Applicant failed to propose any actions to mitigate the associated public health and local nuisance risks associated with the keeping, feeding, and managing of wild pigeons within the premises.
As a result of the investigation, an authorised officer from the EHA considered that there was a risk to public health. This essentially constituted a breach to an individual’s general duty under the Act as there was an omission on the part of the Applicant to take all reasonable steps to prevent or minimise any harm to public health. Thus, the EHA issued a notice to the Applicant under Section 92(1)(b) of the Act which required the Applicant to undertake actions including cleaning and securing the premises and removing all pigeons from in and around the premises.
It is this notice that the Applicant elected to review in Tribunal. Norman Waterhouse represented the EHA in these proceedings and submitted that the Applicant, by failing to comply with her duty under the Act, posed a serious concern not only to the public health of occupants of surrounding houses but to herself. The state of the premises increased the transmission of diseases, and could potentially attract unwanted vermin.
The EHA submitted that the pigeon faeces throughout the premises was a significant health risk to the Applicant as the apparent sole occupier. This position was supported by the fact that the Applicant walked bare foot on the pigeon faeces, which could cause fungal infections and had scratches on her shoulders, leading to an additional risk of infection.
The Director of Health Protection within the Health Regulation and Protection Division of the SA Department for Health and Wellbeing also provided an expert opinion addressing the potential diseases associated with keeping pigeons in domestic settings, which corroborated the EHA’s concerns. Not only can pigeons transmit pathogens to people, but the risk is also further increased where inadequate standards of sanitation exist, especially in a situation where pigeons are kept in excessive numbers.
Decision
The Tribunal Member, in determining the appropriate orders, had regard to the original decision maker’s decision in issuing the notice, as well as additional evidence including evidence from another authorised officer, the expert report, and the Applicant’s own evidence.
While it was clear to the Tribunal that the Applicant wished to house her pigeons in an external loft, the evidence ultimately led the Tribunal Member to conclude that a risk to public health existed at the Applicant’s premises both at the time that the notice was issued, and continues to date, given the quantity of pigeons currently at the premises. The Tribunal Member also found that the Applicant was unable to appreciate the health risks her pigeons presented to herself and others.
Having considered the material before the original decision maker, the further evidence admitted at the hearing, as well as the principles and objectives of the Act, the decision to issue the notice was therefore upheld as the correct and preferable decision. The requirements made on the notice were and continue to be reasonably required to eliminate or minimise the risk to public health.
Accordingly, the Applicant was ordered to remove all pigeons from the premises and refrain from allowing pigeons to enter and remain at the premises on an indefinite basis.
Take home message
This case emphasises a paramount need for councils and regulating bodies to consider the number of people affected by a perpetrator’s actions, the potential degree of harm to public health and nuisance, and the degree of inability and unwillingness to maintain a healthy living environment in ensuring that the powers afforded to authorised officers are exercised lawfully and in accordance with the relevant requirements of the Act.
The legislative framework is in place to promote health and wellbeing of individuals and communities and to prevent disease, medical conditions, injury, and disability through a public health approach. Individuals must take responsibility for ensuring that their general duty under the Act is met not only to protect those around them but themselves.
For more specific information on any of the material contained in this article please contact Paul Kelly on +61 8 8210 1248 or pkelly@normans.com.au or Dale Mazzachi on +61 8 8210 1221 or dmazzachi@normans.com.au.
