There’s been quite a bit of debate about strata corporations banning smoking in common areas and apartments over the last few years. And, there’s been a few Court cases over the issue around Australia and they’re starting to support the non-smokers' position.
But, apparently not in Queensland strata land.
In a recent decision about smoking in Admiralty Towers, the Commissioner
for Body Corporate and Community Management has ruled that one lot owner’s smoke has not been creating a legal ‘nuisance’ to other lot owners and refused to make orders about it.
The applicant in the case claimed that the occupier of the neighbouring lot smoked on her balcony and that the smoke drifted into his entire apartment, particularly the main bedroom, due to the prevailing wind. The applicant asserted that the frequency and volume of smoke interfered with his peaceful enjoyment and use of his lot. He said he should be able to enjoy his home free from toxic second-hand smoke. He argued passive smoking is dangerous. He claimed the neighbour’s conduct was contrary to the legislation. And, he said the neighbour should show more respect to others and restrict her habit if it negatively affects others.
The issue in the case was whether the neighbour was using her lot in a way that caused a nuisance (in the legal sense of that word). This was the relevant obligation in the Body Corporate and Community Management Act 1997 (Qld) and there were well defined legal tests that could be applied.
Interestingly, a by-law that had been created restricted smoking was not applicable as it had not been registered and the Commissioner indicated that, even if registered, the by-law might not be valid or enforceable.
The Commissioner said that the applicant did substantiate assertions that the smoke came from the respondent, did not provide subjective or objective evidence about the quantity of smoke he was exposed to (and its frequency) and did not really explain how smoke was substantially interfering with his use and enjoyment of his lot. The Commissioner also confirmed the decision of the Queensland Consumer & Administrative Tribunal in Norbury v Hogan in 2010 about smoking.
So, it seems that strata smokers still have a safe haven in Queensland strata buildings.
Francesco …
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What amazes me is that lawyers in NSW don't advise people clearly that they can ban smoking, regardless of the effect it has on others: Salerno (Unreported SC decision). There is no requirement in NSW that by-laws regulating behaviour in lots be to prevent harm to others......though of course there should be.
ReplyDeleteCathy,
ReplyDeleteMaybe the lawyers don't know about Salerno's case or haven't reasoned out the logic in the other NSW Supreme Court cases that confirmed the wide operational scope of by-laws (like Hamlena's case, the Bapson v. Puyeti case and the White v. Betalli case.
EIther way the important thing strata owners should realise that they can control lots of activities in the strata buildings if they really want to with by-laws and without waiting and hoping for Courts and Tribunals to proactively interpret strata laws in their favour.
Francesco ...