Smoke Gets in Your Strata Eyes

Smoking is getting in my strata eyes (and making me cry).

That’s because there’s been a fresh rush of news and debate about smoking in strata buildings (especially in NSW) and some of the comments are a bit hard to believe.

The most recent is an article in the Sydney Morning Herald on 2 April 2011 called

Debate fumes as Sydney Apartments Stub out Smoking.

Despite the sensational nature of recent reports, controls on smoking have been around for a long time and things are pretty clear (and not hazy).

In NSW (at least) things work like this -

• Strata laws have always prohibited owners from doing things in the common property or a lot that unreasonably interfere with anyone else’s use of the common property or a lot.  That could conceivably include offensive smoking odours or irritating smoke.
• Strata laws have also always prohibited owners from doing things in their lot that are a ‘nuisance’ to other owner or residents.  Since a legal 'nuisance' includes smoke and smells that always included smoking by-products.
• Since the NSW District Court decision in Salerno’s Case in 2004 (see Casewatch - Salerno v SP 42724) Courts have consistently upheld the validity of extra no-smoking by-laws and enforced them to stop smoking in common areas and inside lots.  So, there’s been no doubt about the validity of such by-laws.
• More recently the Consumer Trader & Tenancy Tribunal has been issuing orders to stop disturbing smoking (whether there’s a by-law or not).

None of this is very surprising since it mirrors other laws restricting smoking in public and other places and society’s views of smoking.  So, it's also hard to imagine that a merit based challenge to any new by-laws strata corporation's introduce prohibiting smoking in strata corporations will get very far. 

So, whilst New South Wales Council for Civil Liberties president Cameron Murphy might say about strata corporations that "The next thing is they'll be banning the drinking of coffee", he should realise that they probably legally can (and might).

But (of course) if that happens, even I’ll protest against it.

So, see you on the median strip with your cigarettes.

Francesco …