EDITORIAL NOTE: SOME NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

Transcription

1 EDITORIAL NOTE: SOME NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED. IN THE DISTRICT COURT AT AUCKLAND CRI [2017] NZDC AUCKLAND CITY COUNCIL Prosecutor v IRENE LAGOCKI (AKA) IU LAGOCKI Defendant Hearing: 6 June 2017 Appearances: V Rewi for the Prosecutor M Meyrick for the Defendant Judgment: 6 June 2017 ORAL JUDGMENT OF JUDGE A-S SINGH [1] Irene Lagocki, you face one charge, namely that you committed an offence against s 239(1) Local Government Act In particular, you breached Part 2, clause 6(1)(c) Property Maintenance and Nuisance Bylaw 2015 by allowing wild pigeon to be fed on your property in a manner that caused a nuisance. [2] The informant has called three witnesses, [a Senior Bylaw Inspector] from Auckland City Council, [complainant 1], a neighbour who resides at [address 1 deleted] and a second neighbour who resides at [address 2 deleted]. The two complainants are on properties on either side of your property, there being three properties on one subdivided section. The final witness [complainant 2], resides at property which is indicated by the letter O on exhibit 1, tab 7. The first complainant, [complainant 1], resides in property marked C on exhibit 1, tab 7, AUCKLAND CITY COUNCIL v IRENE LAGOCKI (AKA) [2017] NZDC [6 June 2017]

2 which in aerial photograph of [street name deleted]. The alleged offence date is 5 November [3] The first witness has been living on her property for approximately eight years. Her evidence is that initially you were feeding birds on the grass berm in front of her property. Approximately four years ago you started feeding on your account sparrow birds, on your property. Her evidence is that a large number of pigeons were being fed by you, initially on the grass berm and later on your property. I have seen photographs in exhibit 1 which show under tab 2, a large number of pigeons on your property as well as [complainant 1 s] property. Under tab 2, photographs also show the place on your property where the birds are fed. Under tab 5 [the Senior Inspector] referred to feeders from which bird seeds were dispensed. The date on the photograph is 9 March Further photographs show a number of pigeons sitting on the roof. One other neighbour who did not attend Court to give evidence today also had taken photographs which is under tab 6 showing a number of pigeons on your property. For the findings I will ultimately make, I will put tab 6 to one side as that witness who took the photograph was not in Court to give evidence. My findings will not depend on those photographs. The photographs in Exhibit 1 show a number of pigeons on your roof top. [4] The evidence of [the Senior Inspector] is that there were complaints from neighbours about pigeons. He witnessed a number of pigeons on your property, took photographs and saw pigeon droppings on the walls. He considered that in one of the photographs, one distinct dropping appears to be evident. However, his evidence was that there were many more droppings, particularly on the roof which given the position of the droppings, he could not capture in the photographs. I accept his evidence as credible and reliable. He did witness droppings on the property, particularly the roof top, which could not be captured in photograph. In particular, he received a complaint on 5 November 2015 that you were feeding birds on your property. He went to the property, he observed that the properties in issue, namely your property and the complainant s property had a number of pigeons on it. He estimated there were approximately 50 to 60 pigeons on the two properties.

3 [5] He saw the seed feeder. He described it as dispensing seed onto what appears to be a plate or a saucer with seeds on the ground. He saw pigeons feeding on the seeds. He tried to contact you. There was no answer at your front door. He went to your place at another time. He also sent you a Notice, which is in exhibit 1, tab 3. It is dated 10 November The complaint was on 5 November The letter states: Auckland Council has carried out an investigation at the property, namely [address 3 deleted], Ellerslie. Our investigation has confirmed that you are feeding non-domesticated birds on your private property. This is creating a nuisance to neighbouring property owners. In addition the bird droppings is also creating health issues, damaging private properties and adding unnecessary clean up cost to the neighbouring property owners. [6] He enclosed a Notice requiring you to take action to address the issue. [7] I understand from the two complainants that the feeding of the birds has continued unabated over the years, particularly in the last four years. The pigeons are causing nuisance to the two complainants, including the volume of droppings on the property which requires cleaning. The droppings on [complainant 1 s] spouting has resulted in plants growing and blocking water flow. Despite the mesh to protect the gutters, pigeon droppings go through. Her evidence is that the plants growing on the roof is largely due to the pigeon droppings. [8] She has to have her property commercially cleaned with chemicals once a year, apart from usual regular cleaning that she does herself. She has a toddler child that cannot go into the garden to play due to the volume of pigeon droppings. In wet conditions it becomes slippery. She has found the ordeal frustrating. She also finds that the fluttering noise from the pigeons, particularly at the time when they land or fly in such large numbers, makes excessive noise, which is a nuisance. She has a young child that requires to sleep in the daytime. The nuisance created by the large number of pigeons is affecting adversely on her enjoyment of her property. [9] Likewise, witness [complainant 2] gave evidence that she has lived on her property, which is marked with the letter O in exhibit 1, at tab 7, since she can remember. Pigeons have been fed by you, initially on the berm, and then on your property. She has found it frustrating that the pigeons are causing nuisance,

4 including pigeon droppings on the roof top, on the walls of the house, on two vehicles on the property and on the washing on the line. She also expressed concern about the noise that emanates from the pigeons cooing and fluttering when they land and fly out from her property. She has also found it very embarrassing when she has visitors. [10] She has tried to scare the birds. She has found living on her property very frustrating. She stated that SPCA and Police have also visited your property. Whilst you accept that SPCA and people in black suits from council have come to your property, you did not accept the presence of police. Be that as it may, there have been concerns expressed by neighbours resulting in officials coming, including [the Senior Inspector] to resolve the nuisance created by pigeons you feed on your property. [11] Both complainants [complainant 1] and [complainant 2] have said that they have made efforts to express their concerns to you about the number of pigeons and the nuisance that the pigeons were causing to them. You were not prepared to listen to them. According to [complainant 2], you would snap and not participate in any meaningful discussions about resolution of the issues that both complainants were raising with you. [12] You have elected to give evidence. The fact that you have given evidence does not shift the burden of proof. It remains on the prosecution from the beginning to the end of the trial. Even if I were to reject your evidence, the onus still remains on the prosecution to prove the charge to the requisite standard of beyond reasonable doubt. [13] You deny that the pigeons are causing any nuisance either to yourself or to your neighbours. You have given evidence that it takes you approximately five minutes to sweep the yard or to hose it if it is wet. You do not find that to be problematic. You do not accept that feeding wild pigeons causes nuisance. [14] It is your evidence that your intention is to feed sparrows. Incidentally, the pigeons come and feed on the seeds. You express concern about a neighbour at

5 [address 4 deleted] poisoned the pigeons. Your evidence is that you do not see why the neighbours should be complaining against you when the birds do not cause any nuisance for you. [15] In your evidence you stated that the complainants [complainant 1] and [complainant 2] are lying when they said they made attempts to discuss matters with you. You accepted you hear the birds making noise but it does not inconvenience you. It is your evidence that you are more frightened with the noise that piece of wood that [complainant 2] uses to scare the birds, more than the noise that the birds make. [16] I have carefully considered all the evidence. I make the following findings: (a) I find that your evidence is not credible or reliable. I do not accept your evidence that the neighbours, in particular the two complainants, have not attempted to speak to you with a view to resolution. I do not accept your evidence that your actions in feeding the birds do not cause nuisance to the two complainants. (b) Whilst you may have initially intended to feed the sparrows, I find that you have known all along that the pigeons come and feed on the seeds that you leave for the sparrows. You were made aware by the neighbours, the two complainants [complainant 1] and [complainant 2] that they are concerned about the number of pigeons on their properties and on your property when you feed them. (c) You are aware that [the Senior Inspector] has investigated. You are aware and this was never challenged, that a notice was given to you as set out in exhibit A, tab 3, advising you that you were creating nuisance by feeding non-domesticated birds on your property. (d) I do not accept your evidence that you did not intentionally feed the pigeons. You are fully aware of the concerns expressed by [the Senior

6 Inspector] and you were aware that the complainants were concerned about the volume of pigeons coming to the property. [17] Now that I have rejected your evidence as not being credible, I put that to one side. You have no onus to prove your innocence, it is for the prosecution to prove the charge beyond reasonable doubt. [18] I accept the evidence of both the complainants as credible and reliable. I accept that a large number of pigeons come to their property, waiting to be fed on your property. I accept their evidence and that of [the Senior Inspector] that considerable pigeon droppings are left on the two complainants property. I accept [the Senior Inspector] s evidence that when he visited the property after the complaint, there was a large amount of pigeon droppings on the roof, which could not be captured in the photo given the location of those droppings. [19] He also pointed to droppings on the fence. There was one visible dropping on the wall of one of the complainant s property. However, [the Senior Inspector] s evidence was that there was much a lot more droppings on the wall which could not be captured in the photograph given the colouration of the droppings. [20] I accept the evidence of [the Senior Inspector] and the two complainants to be credible and reliable. The birds were leaving droppings on the property in such volume that it was causing nuisance to them. I also accept the evidence of the two complainants that the pigeons cooing and fluttering as they landed and took off from their respective properties was causing a lot of noise, amounting to nuisance. I accept that their enjoyment of their respective properties was diminished by reason of the nuisance that was being caused by you feeding the birds. [21] I find that the loss of enjoyment included complainant [complainant 1 s] child not being able to sleep due to the noise created by the cooing and fluttering from the pigeons.

7 [22] Those are my findings. I accept the evidence of the two complainants and the senior inspector to be credible and reliable. I accept that nuisance was caused to the two complainants in the manner that they have described. [23] I now deal with some legal issues that counsel has raised. In particular, I refer to the Property Maintenance and Nuisance Bylaw I note that one of the purposes of the bylaw at clause 4 is to prevent the active feeding of any bird or animal on private property in a manner that causes or may cause nuisance. [24] The charge is under s 239(1) Local Government Act In particular, the breach relates to Part 2 clause 6(1)(c) Property Maintenance and Nuisance Bylaw [25] Clause 6(1)(c) reads; A person must not allow the active feeding of any wild or feral animal on any private property under their control in a manner that causes or may cause a nuisance. [26] On your behalf Mr Myerick has submitted that I should make a finding whether the pigeons fall in that category. Initially, he made submissions regarding feral animal. The active feeding of wild animal relates to pigeons. We are not dealing with feral animal. We are dealing with wild animal. In the definitional clause 5 animal is defined to include any member of the animal kingdom, including any mammal, bird et cetera. Clearly a pigeon is a bird. [27] Counsel made further submission as to what constitutes a wild pigeon in the context of this case. Clearly, the pigeons in issue are not pets. They are not domesticated. On the evidence I have heard, they are clearly wild pigeons. I find that the pigeons are wild, non-domesticated birds. In particular, they are not pets. I find that the non-domesticated pigeons come within the definition of wild animal. [28] Counsel then made submissions on what constitutes nuisance. The two complainants are two particularly sensitive people. He referred to your evidence that you were not affected by the birds. That is understandable because you are the

8 person feeding the birds. Therefore, you did not feel affected by the birds that you have been feeding. [29] I find that the two complainants are normal people who were affected by the amount of bird droppings, by the excessive noise from the birds. They have suffered diminution in the enjoyment of their property. [Complainant 2] was embarrassed when visitors came. [Complainant 1] was frustrated with the amount of cleaning she had to do. She was visibly emotional when she gave evidence about the frustration that she suffered by the nuisance that was created by the pigeons. [30] Further, I find that the volume of pigeon droppings, caused inconvenience to the two complaints, embarrassment to [complainant 2], frustration to [complainant 1], particularly with a young child and the toddler not being able to play in the garden and the slippery condition it created. I find that to be nuisance within the meaning of the bylaw. [31] I am guided by the case law as well. I refer to the case of Warren John Adams 1 AP55/86 High Court Napier Registry, decision of Jeffries J dated 22 September In that case the trial Judge had found that the noise of the birds in the manner in which it has been described and the degree in which it has been described and that the hours and the results that had been described, even allowing for some exaggeration, meets the definition of nuisance, under the relevant Health Act [32] On appeal the concept of nuisance was challenged. The appeal against conviction was dismissed. Court accepted that the noise of the birds as described meets the definition of nuisance. [33] Counsel for the informant has also provided me with a further case, Murray v Laus 2 [1960] NZLR 126, decision of Turner J. In that case Court dealt with the definition of the word offensive or the phrase offensive or likely to be injurious to health. Noise which besides being aesthetically unpleasing, also substantially diminishes the comfort of those who are subjected to it. 1 Warren John Adams AP55/86 High Court Napier Registry 2 Murray v Laus [1960] NZLR 126

9 [34] Aesthetically unpleasing bird droppings on one s property, including walls, rooftop, garden, pathways, frustration, diminution in enjoyment of property and the cooing and fluttering of the wild pigeons constitutes nuisance. [35] I find the informant has proved the charge beyond reasonable doubt. Accordingly I find you guilty as charged. A Swaran Singh District Court Judge