These Q&As are all about smoking in strata in Queensland. Can you have a no smoking bylaw? Can you ban a resident from smoking on their balcony or in common areas?
Jan 2022 UPDATE: A recent Office of the Commissioner for Body Corporate and Community Management decision has shown how an order restricting smoking can be achieved. Read this article to find out: QLD: Smoking in a community title scheme.
Table of Contents:
- QUESTION: How will the changes to smoking laws in Queensland body corporate buildings affect vaping and the medicinal use of cannabis?
- QUESTION: A lot owner has been leaning over their balcony to take photos of the owner below smoking. They’ve shared the photo with the committee as proof that their neighbour is interrupting the peaceful enjoyment of their lot. Is this legal?
- ARTICLE: The right to end smoking in QLD body corporate buildings?
- QUESTION: I rent a townhouse in a gated complex. Can I vape outside and within my lot? Would a bylaw apply and if so, where do I find the by-laws?
- QUESTION: Is there a standard no smoking policy for strata corporations in Queensland? Can we introduce a standard no smoking by-law with various amendments, as needed?
- VIDEO: Why now is a really good time to introduce a ‘No Smoking’ bylaw
- QUESTION: If we wished to mount a successful case of nuisance against a persistent smoker at our complex, would it be advisable to obtain expert evidence re the dangers of smoke drift.
- QUESTION: Why are the rights of smokers in strata more important than the rights of those who choose not to smoke. It should not be left to Strata by-laws or Owners Corporations to determine whether we breathe clean air!
- QUESTION: Smoke drift is driving me insane. Can the body corporate change the by-laws to put the onus on the smoker to ensure their smoke doesn’t cause a nuisance? Or would this bylaw be considered oppressive and unreasonable in QLD?
- QUESTION: We’ve installed synthetic turf in an area of common property. As this is only a small part of the shared common ground, can we make this a smoke free area?
- QUESTION: Our complex will not do anything about residents smoking on balconies. With the Coronavirus, smoking laws need changing urgently.
- QUESTION: A tenant’s smoke drift in our strata is going into common areas. He has been served a Form 11. How do we either make this stop or evict the smoker?
Question: How will the changes to smoking laws in Queensland body corporate buildings affect vaping and the medicinal use of cannabis?
Answer: The new strata legislation does cover vaping, but the medicinal use of cannabis is unclear.
The new strata laws are about ‘smoke’, the definition of which is linked to the definition in the Tobacco and Other Smoking Products Act 1998. Here’s that definition:
- smoke means—
- for a smoking product other than a personal vaporiser or a hookah—smoke, hold or otherwise have control over an ignited smoking product; or
- for a personal vaporiser—inhale through the vaporiser; or
- for a hookah—inhale through the hookah.
So, vaping IS covered by the new strata legislation, and the medicinal use of cannabis is unclear, I’m afraid. There are a few other instances of the new strata legislation not covering what we might consider as ‘smoke’: despite submissions from Strata Solve pointing it out, smoke from barbecues, wood-smokers or open fires are not covered by the new strata legislation.
Chris Irons
Strata Solve
E: [email protected]
P: 0419 805 898
This post appears in Strata News #677.
Question: A lot owner has been leaning over their balcony to take photos of the owner below smoking. They’ve shared the photo with the committee as proof that their neighbour is interrupting the peaceful enjoyment of their lot. Is this legal?
Answer: Both smoking and taking photos are lawful activities. However, there are some restrictions.
Both smoking and taking photos are lawful activities. However, there are some restrictions.
Photographs
Relevantly, photos cannot be taken in a private area. This usually extends to bedrooms or bathrooms and may not extend to an outdoor balcony. However, by leaning over the balcony, the lot owner may be conducting themselves in a way that creates a hazard – this is restricted by the BCCMA and usually by a by-law.
Smoking
Although smoking is lawful – if it unreasonably interferes with the use and enjoyment of a lot or common property by another person (or creates a hazard) it is unlawful – this is also restricted by the BCCMA and usually by a by-law. Whether the specific circumstances offend these provisions will depend on the frequency and intensity of the smoke drift (and whether it can be evidenced).
Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753
This post appears in the December 2023 edition of The QLD Strata Magazine.
ARTICLE: The right to end smoking in QLD body corporate buildings?
I think it’s fair to say this bill effectively gives a body corporate the right to end the days of smoking in a strata scheme.
The government always has a problem regulating what goes on behind closed doors. It’s your property – your domain – you do what you want with it.
The difficulty with smoking is that the residue of smoking is this nebulous thing that creeps in. If someone is smoking just inside the door, it doesn’t mean smoke will be contained behind it. Let’s look back to the Artique decision, where an adjudicator decided to limit smoking in relation to Section 167. Let’s skip over the nuisance and talk about it being a hazard. It’s funny how we all focused on nuisance over the years. In Norbury vs Hogan, it was basically held that for smoking to be a nuisance, it needs to be chain smoking. We all thought, “you can’t stop smoking”. Then an adjudicator said, “what about smoking as a hazard?” Yes, good call.
The words matter when you really sit down and spend time reading them. What they’ve done with smoking is two things. First, they’ve expanded the definition of nuisance to specifically include smoking. The words really matter here. This now extends to where someone ‘regularly’ uses a smoking product, and that’s a lot less than chain smoking. What proof will be needed? What is ‘regular’? Is it the start and end of every day? Those are going to be the fights. No matter what, there’s now a standard for nuisance in strata if this legislation is passed in the form that it’s presented, that is actionable by people, regardless of what the by-laws say.
There’s no penalty with any of this, by the way. While the government has moved to allow the effective prohibition of smoking in pretty much every circumstance, they haven’t attached a penalty to it, which is interesting. Surely, one begets the other, but not in this case, seemingly.
To clarify, we’re talking here about smoking in an open area. If someone is smoking and it is interfering with the use and enjoyment of your lot, then you may have something actionable with respect to the provisions of nuisance.
They’ve lowered the standard that was previously required there.
On top of that, they have given the ability for bodies corporates to prohibit smoking on the common property and outdoor areas of a lot that are common property or exclusive use. They still haven’t gone inside that front door, but they’ve gone outside that into what might be your property. That, in a sense, is as close as they’re going to get to interfering with people’s individual rights to engage in a lawful activity within their home because the balcony is probably going to be part of their home, but that activity affects other people.
By-laws, as a rule, can’t prohibit things. All they can do is regulate things. That’s why, from a pet perspective, a no pet by-law has always been invalid, but they’ve made pet by-laws black and white. What they’ve also done with this particular provision of the legislation is specifically say that the by-laws can prohibit smoking. That is new.
How does it get enforced? The same way as a by-law breach contravention gets enforced now. Either through the Magistrates Court or, far more commonly, through the Commissioner’s Office and that raises a big issue. If every person and their dog is now going to seek to enforce smoking by-laws, the Commissioner’s Office will find themselves inundated very quickly.
Importantly, a body corporate must still pass a by-law, or an individual can pursue a nuisance or hazard proceeding in relation to smoking, but the enforcement process has not changed. That is the same.
It is interesting to note that ‘smoke’ here is tied to a definition of a ‘tobacco product’. So, while that would capture cigarettes and vaping, it would not capture smoke from barbecues, word burners or smokers. In those cases, the existing provisions for nuisance and hazard would apply. That definition might be expanded later, but who knows at this stage.
It’s also retrospective, and it is very unusual for legislation to do this. Usually, there’s the line in the sand where here’s the date it commences. That’s when things kick off. What they’ve done is specifically include a section that says to the extent the body corporate has a no smoking by-law that complies with the new law, that’s going to be valid. It’s not valid today, but when this legislation commences, it will be valid.
That’s allowing the will of the people – as much as it might not be enforceable now, to be enforced when the legislation comes into existence that would give it that right.
If you’ve got a smoking issue, you will need to review the by-laws considering this. Indeed, one of the key messages arising from these proposed amendments is that a review of by-laws and their careful, consistent application thereafter will be vital in ensuring scheme harmony and protecting property values.
Chris Irons
Strata Solve
E: [email protected]
P: 0419 805 898
Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500
This post appears in the October 2023 edition of The QLD Strata Magazine.
Question: I rent a townhouse in a gated complex. Can I vape outside and within my lot? Would a by-law apply and if so, where do I find the by-laws?
Answer: Unless there is a by-law restricting smoking, you should be able to smoke outside your townhouse.
As a tenant, your agent or landlord should have provided you a copy of your by-laws when you moved in. If you don’t have one, ask them for a copy. You can also ask them for clarification on the laws around smoking. They should be able to assist.
Unless there is a by-law restricting smoking, you should be able to smoke outside your townhouse.
Mostly, the rules around smoking consider smoke drift and how that affects other lots around you – so if the smoke you create drifts and creates a problem for another occupant, you could be subject to a complaint. I don’t think there is a difference between whether you smoke cigarettes – both create smoke, although vape smoke tends to cause less offence.
Smoke drift is a common source of aggravation in tower-type buildings where smoke can easily move from one balcony to another but might be less of a concern in a townhouse, depending on the distances involved. Still, be respectful of your neighbours and hopefully, they will be respectful to you.
If there is a by-law restricting where you can smoke, of course, you should abide by that.
Lastly, the State Government has announced that it plans to introduce changes limiting smoking behaviour on common property. We don’t know the full details of what those changes are or when they will be introduced, but it is likely that they may have some effect on smoking issues like yours when introduced.
William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924
This post appears in Strata News #644.
Question: Is there a standard no smoking policy for strata corporations in Queensland? Can we introduce a standard no smoking by-law with various amendments, as needed?
Answer: A no smoking by-law or policy is unlawful.
A no smoking by-law or policy is unlawful. The law, as it stands now, is that smoking is a lawful activity and bodies corporate cannot:
- prohibit an otherwise lawful activity (for the same reasons it cannot ban pets); or
- make rules that are inconsistent with legislation.
That said, what is not lawful is smoking in a:
- way that unreasonably interferes, causes a nuisance or causes a hazard with another person’s use and enjoyment of their lot or the common property – pursuant to section 167 of the Body Corporate and Community Management Act 1997 (Qld); or
- substantially enclosed area on the common property – pursuant to the Tobacco and Other Smoking Products Act 1998 (Qld).
Accordingly, a by-law that mirrors these requirements would be enforceable. A by-law that oversteps these restrictions would be unlawful.
I would be happy to be engaged to assist by drafting a motion and by-law to propose an enforceable smoking by-law. This would need to be approved by special resolution and a new community management statement recorded in the Titles Office.
Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753
This post appears in the March 2023 edition of The QLD Strata Magazine.
Why now is a really good time to introduce a ‘No Smoking’ bylaw
In this video, Nikki Jovicic from LookUpStrata chats with Chris Irons from Strata Solve and Will Marquand from Tower Body Corporate about a recent Office of the Commissioner for Body Corporate and Community Management decision concerning smoking in QLD strata schemes in early 2022.
This decision rocked the world of bodies corporate (in QLD anyway)! The scope of this chat is to provide the LookUpStrata audience with some clarity about the decision, why it was successful and most importantly, what it means for residents in QLD strata buildings – both the smokers and the non-smokers.
We talk about what your building, or you personally, should be doing right now if you are affected by smoking.
We provide an outline of the decision and why it’s important. Watch the embedded video above to find out. We chat about:
- How you could say that the adjudicator has almost taken it upon themselves to make the decision about second hand smoke in the absence of the Government doing it.
- How adjudicator decisions do not set a precedent, and so can – and quite possibly will – be overturned.
- Why now is a really good time to introduce ‘Anti-Smoking’ bylaws.
- Whether the committee deserved a rap over the knuckles for the way they handled the situation.
- What other hazards may be dealt with in this way? COVID? Noise? The list goes on…..
- The difficulties in enforcing ‘no smoking on the balcony’ bylaws? Do financial fines apply?
- Why it was surprising that the order also instructed a resident’s activities within their own lot.
- Not to mention the BIG question – Is there a chance smoking will be addressed in the legislation? Chris Irons say YES. Watch this space later in 2022.
You can read the full decision here: Artique [2021] QBCCMCmr 596.
Chris Irons
Strata Solve
E: [email protected]
P: 0419 805 898
William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924
This post appears in Strata News #540.
Question: If we wished to mount a successful case of nuisance against a persistent smoker at our complex, would it be advisable to obtain expert evidence re the dangers of smoke drift.
Our By-Laws were recently updated for us by a strata lawyer, and they provide that an owner or occupier must not smoke, or permit a visitor to smoke, in their lot if it unreasonably interferes with the use or enjoyment of another person in a lot or common property.
We understand in Queensland, the Adjudicators have consistently refused to order an owner/occupier to ‘cease and desist’ smoking in their own lots, even on their balconies, because the complainants had failed to prove their case, ie unlawful nuisance.
If we wished to mount a successful case of nuisance against a persistent smoker at our complex, would it be advisable to obtain expert evidence re the dangers of smoke drift in general and in the particular circumstances of each case?
Answer: It is difficult to get a successful outcome from an adjudicator regarding smoking
Short answer? Yes.
Longer answer? As you’ve correctly noted, it is difficult to get a successful outcome from an adjudicator regarding smoking. This is essentially because the test for nuisance (as provided for in section 167 of the Body Corporate and Community Management Act 1997) has been established in the Courts and it is a high threshold. Without going into the gory details, it’s not enough to simply say ‘that person is smoking, they’re causing a nuisance’. Legal advice could assist the body corporate in make its necessary case against the smoker.
Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500
This post appears in Strata News #508.
Question: Why are the rights of smokers in strata more important than the rights of those who choose not to smoke. It should not be left to Strata by-laws or Owners Corporations to determine whether we breathe clean air!
Neighbours in my multi unit complex smoke on the balcony resulting in smoke drift through my window and directly into a room I share with two babies. The smoke drift comes into every room including the kitchen.
The laws should seriously change to stop people in multi unit dwellings smoking on their balconies as they are forcing their toxic smoke onto neighbours. We have tried talking to the neighbours and the on-site manager.
I don’t understand why the rights of smokers are more important than the rights of those who choose not to smoke. It should not be left to Strata by-laws or Owners Corporation to determine whether we get to breathe clean air!
Answer: You can initiate proceedings for nuisance or if your body corporate has by-laws about smoking you can potentially initiate proceedings for by-law breaches.
At the risk of sounding blunt, yes, you can do something about it, BUT nothing will happen unless you initiate it yourself and take the steps to make it happen. I can tell you that those steps will seem convoluted and complex, so the decision for you is whether you go through with it.
You can initiate proceedings for nuisance or if your body corporate has by-laws about smoking you can potentially initiate proceedings for by-law breaches. I note you say you’ve tried talking to the onsite manager. You need to be raising your issues with the committee rather than the onsite manager. There is a very specific process you need to go through for pursuing nuisance or by-law issues and those are outlined in the article you’ve commented upon. You may also need to seek some advice about that. You’ll also need evidence to back up what you are saying, which might mean keeping a log or journal of issues.
Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500
This post appears in the March 2021 edition of The QLD Strata Magazine.
Question: Smoke drift is driving me insane. Can the body corporate change the by-laws to put the onus on the smoker to ensure their smoke doesn’t cause a nuisance? Or would this bylaw be considered oppressive and unreasonable in QLD?
Smoke drift issue is driving me insane. I have a toddler and baby whose young lungs I want to protect but our upstairs neighbour always smokes, and the smoke always drifts onto our balcony.
I’ve asked the body corporate to change the by-laws to put the onus on the smoker to ensure their smoke doesn’t cause a nuisance, even when they smoke in the ‘privacy’ of their own balcony. This is a law that has been adopted in New South Wales, which I thought was a great solution because it doesn’t actually ban smoking, it just forces smokers to be more conscious of people around them. My body corporate is hiding behind the strict letter of QLD law, saying they can’t (or won’t) include such a by-law.
Or could a bylaw such as this be considered oppressive or unreasonable? Would it pass the test if it were ever to be challenged?
As an aside, I find it astounding that the QLD government has numerous laws in place to protect children from exposure to cigarette smoke when they are at school/daycare, at a playground or sporting event – they are even protected on car journeys, which is interesting as it is not a public space – yet there is this gaping lack of protection the minute the children arrive home. This borders on negligence in my view – after all, where do children spend the bulk of their time outside of school? Hello, home!
Answer: I’m not sure your proposed by-law would be oppressive or not but it does seem possibly unenforceable.
I’m not sure your proposed by-law would be oppressive or not but it does seem possibly unenforceable – how is someone going to control the flow of smoke from their balcony? Should it be enclosed? Fans installed? A vent? What if those options are either really expensive or not practical?
I’m not disagreeing with your wish to be smoke-free. I’m just saying that you’d need to consider all of the above, and more because these would be the responses of the smoker in question and would likely be considered by an adjudicator if there was a challenge.
You can request a motion be placed on the agenda of your next general meeting seeking the by-law you want, but if you did do that then I’d urge you to keep the above points in mind and have answers ready, otherwise, your motion is likely to fail, or not even get considered.
Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500
This post appears in Strata News #426.
Question: We’ve installed synthetic turf in an area of common property. As this is only a small part of the shared common ground, can we make this a smoke free area?
We’ve installed synthetic turf in some of the common property. The installers have recommended no smoking near it to prevent burn holes from live ash and butts.
We’ve installed synthetic turf in some of the common property. The installers have recommended no smoking near it to prevent burn holes from live ash and butts. Can we put in a motion at the AGM to make this a smoke free area based on the fact that it’s only a small part of the shared common ground?
As a bylaw cannot be too oppressive or unreasonable I would think that a small area of the common area that has smoking restrictions due to the installation of synthetic turf would fall into the reasonable category.
If we were able to have such a bylaw would we put in a motion at the AGM / special resolution for a new bylaw?
Answer: A by-law prohibiting smoking on common property may be open to challenge.
Limitations on what by-laws can do are provided for in section 180 of the Body Corporate and Community Management Act 1997 (BCCM Act). As you’ve correctly pointed out a by-law must not be oppressive or unreasonable (section 180(7) of the BCCM Act). One of the ways in which a by-law might be oppressive or unreasonable is when it is framed as a prohibition. By-laws are meant to regulate, not outright prohibit.
Regarding smoking, there’s some fairly well-established case law about smoking in bodies corporate. A by-law prohibiting smoking on common property may be open to challenge. Your email talks about both a ‘smoke-free’ by-law and some restrictions about smoking on the common property. I’d say these are 2 separate things. If you’re intending to submit a motion about a new or revised by-law, you need to get that distinction clear.
By-laws need to pass by special resolution (section 62 of the BCCM Act) at a general meeting.
It will ultimately be an adjudicator in my former Office that makes the determination about whether a by-law is unreasonable or oppressive and they will consider things on a case by case basis. It’s up to the body corporate in your scheme to act reasonably and if ever a by-law about the synthetic turf was to be challenged, it would be up to the body corporate to demonstrate why the decision about the by-law was reasonable in the circumstances.
Before all of that, though, there might be some practical and informal steps. If it hasn’t already happened, could there be communication to all owners and occupiers about the turf? You can’t assume everyone knows about its installation and what might happen if there are ash and butts. Perhaps you can provide to all owners and occupiers a copy of the installers’ advice to really illustrate your point. You might like to think about doing that informally first in a circular or newsletter, or with a notice near the turf, before (or even rather than) opting directly for a by-law. It would be cheaper and less time-consuming.
I’m with Hynes Legal in a non-legal capacity to provide a pragmatic perspective to and solutions on body corporate issues. This query is a great example of a situation that has some dedicated legal avenues but which also has a range of other, non-legal possibilities which might also resolve the matter and do so in a more harmonious and effective way. Feel free to discuss these sorts of things with me.
Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500
This post appears in Strata News #397.
Question: Our complex will not do anything about residents smoking on strata balconies. With the Coronavirus, smoking laws need changing urgently.
Our complex will not do anything about residents smoking on balconies. We have to shut our doors and windows as smoke drift is coming into our unit all day long.
Surely at least in times of Coronavirus with responsible people staying home all day, Body corporates or Unit Managers should at least put a stop to this health risk to all residents.
We all should be able to breathe without constant cigarette smoke coming in. Nothing is being done in this complex. With the Coronavirus, smoking laws need changing urgently.
Answer: The body corporate is able to regulate activity on common property. When it comes to someone’s lot though, they don’t have that same power.
The government has said and done many things in relation to COVID-19 and has issued many orders as well. One order they haven’t made, to the best of my knowledge, is to outlaw smoking.
While we may have strong objections to smoking, the fact remains it is legal to smoke in Queensland. So it is also legal to smoke in a body corporate, albeit with some possible restrictions. For example, when it comes to use of common property.
The body corporate is able to regulate activity on common property. When it comes to someone’s lot though, they don’t have that same power. Additionally, it isn’t the role of onsite managers, body corporate managers or caretakers to regulate people’s behaviour – that’s the role of the body corporate, to enforce through by-laws.
In relation to smoking, there is scope for you to pursue by-law breaches and also nuisance breaches either as an individual or through your committee, and there is also nothing stopping you discussing with your committee your concerns, as well as putting up motions to general meetings if that’s what you’d prefer.
If you want laws changed, then that’s a matter for you to take up with your elected representatives.
Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500
This post appears in Strata News #333.
Question: A tenant’s smoke drift in our strata is going into common areas. He has been served a Form 11. How do we either make this stop or evict the smoker?
A tenant’s smoke drift in our strata is going into common areas and there have been verbal complaints and complaints sent to the Real Estate Property Manager. The Property Manager said the tenant is in breach of his rental agreement because it states no smoking in the unit or in the closed-in balcony area of the lot.
The tenant has been given a form 11 but still continues to smoke. We are aware we should be compiling evidence and lot owners now have a record which will hopefully help to evict the tenant if this continues.
How can this be done? It’s the tenant’s word against all other residents. Politely asking him to cease hasn’t worked and has made things uncomfortable for those who have asked, either politely in person or through the property manager. Other occupiers now don’t want to put a complaint in writing or come forward because of retaliation.
Answer: There is a cross here between a tenancy issue and the body corporate issues.
There is a cross here between a tenancy issue and the body corporate issues.
Any breaches of the rental agreement are a matter between the owner of the lot and the tenant where the property manager, acting as agent for the owner, would be the middle person. This means the property manager should only be acting on the owner’s instructions in relation to any rental agreement breaches.
As a completely separate issue is whether there are any by-law breaches which is a matter for the body corporate to enforce against the tenant and would explain the form 11. The committee would need further evidence of the smoking in strata to enforce the by-laws but the committee wouldn’t be in a position to enforce the rental agreement.
Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500
This post appears in Strata News #251.
Have a question about smoking in strata in Queensland or something to add to the article? Leave a comment below.
Read next:
- QLD: The golden rules of by-law enforcement
- By-laws regulating smoking in Queensland community title schemes
Still after more information about smoking in strata or even more general articles about strata in Queensland? Visit Strata Smoking OR Strata Legislation Queensland
Looking for strata information concerning your state? For state-specific strata information, take a look here.
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if a unit owner ignores a by-law wihin a complex that you can not smoke on a balcony, what happens to that individual.
Can it be enforced that a owner/occupier of a unit in a complex is not allowed to smoke inside thier appartment with doors and windows closed.
Hi William
If you watch the video above with Chris Irons and Will Marquand about a recent QLD smoking decision, both of your questions are discussed.
Thanks
You need to smoke 220,000 cigarettes to get the same toxins as from a two hour barbeque.
I would prefer someome having a puff on the balcony adjoining mine than a barbeque yet no one seems to complain much about barbeques.
My neighbour smokes on her outside patios and the smoke drifts into my Unit. ( NASTY!) However, a bigger problem is the constant burning of incense up to 12/15 hours a day on her outside patios. I often have to close windows and doors. Can a Bylaw be applied to this happening?
RE Chris Iron’s advice re expert evidence and legal advice if mounting a case against smoke drift from a persistent smoker in their own unit.
Sounds like any owner, or body corporate, who wished to proceed with this matter would incur a whole lot of $$$s with little prospect of success. I guess unit owners who are aggravated by smoke drift from another unit will just have to wait to see if there is any positive outcome from the current Law Reform group reporting to the AG about smoking. I appreciate the general rights of anyone to smoke on their own property, especially if they live out in the burbs on a 600m property, or even in a Standard Survey type of complex where the units are not adjoining each other. But perhaps the collective rights of those who live in close proximity to their neighbors – especially in tower complexes – override the rights of individuals when there is a reasonable expectation of smoke drift.
In NSW a Court of Appeals judge ruled,
“…in the words of the court, a democratic will of the majority of owners doesn’t convert a democracy into a majoritarian dictatorship”…
Now this was a case regarding keeping pets in owners lot. (Cooper V Horizon)
What the owners do in their own lots is their business as long as it does not interfere with the peaceful enjoyment of living of adjoining lot owners.
Tobacco smoke penetrating other lots can be a nuisance to another lot owner BUT it is silent and therefore it is peaceful. Tobacco smoke is not the nuisance as smoke’s density / viscosity dissipates rapidly in open fresh air whether one smokes on the balcony or inside their lot with window/s open. So the smoke is not the problem…People are confusing smoke with smell. It is the smell that they are complaining about. Yet, the same people who complain about smoking in apartment units invited to a BBQ where there will be smoke and smell will go gladly. Anyone for a free sausage sizzle at Bunnings? Please don’t rush all at once there will be enough smoke and smell for you to enjoy.
Interestingly i am looking at buying a unit with management rights & selling my oversized house atm. Looking into the various pros & cons & drilling right down to these unthought of issues like unwelcome smoke, cooking or toilet smell drift intrusion when many people are living together in close knit community / unit complexes & now with the newly added covid19 factor. This new & very bad smell specifically cooked up by virologists to best attach to the populations lungs will hang in the air for a very very long time.
Actually here is something to contemplate… is smoke/cooking smell drift actually your welcome canary in the coal mine ? Use it to assess your environment. If such infrequent activity noticeably affects you, does it not also demonstrates how susceptible you are to the constant but undetectable covid19 spread risk in your current living environment?
A quick check shows that Each person inhales and exhales approximately 7 or 8 liters of air each minute or 11,000 liters per day. Multiply this by 365 days …unless there is a smoker or two in your area, not any of all this is even noticeable.
I now appreciate my oversize house & land with one noisy neighbour . It would be silly to swap it for dozens of much closer neighbours plus their visitors, plus the multitude of problems which unit management brings into the mix.
Hmmm… be nicer to your onsite managers , perhaps they were not right in the head when they paid big money for management rights?
Well said. This is an industry that really needs an overhaul. Indeed you pay a lot of money to get into these businesses however if you strike a committee who have a bloody mind and very controlling and have very little experience how Management Rights work it can be hell.
Often you will find their bullying tactics and sabotaging efforts are very hard to deal with. They form cells among the owners and fill their heads up with a lot of lies simply because they cannot be bothered to read the legislation and what their role is.
You buy a contract and so long as you follow that contract to the letter the rest is your own business and you are entitled to earn an income and charge appropriate prices for your services.
If I had to say what is the worst part of buying into these businesses it would be “”bullying and disrespect and lies “often flung at you by an inexperience “committee in search of power. Strata Managers are often reluctant to speak to them in fear of loosing the contract. The coercion that goes on is something I have never experienced in my business life before.
My recommendation to you is do your research on what has gone on in the building in the past. You will see their is a pattern of this repetitive behaviour towards any manger who have been before you. I personally would never have believed grown adults could behave so badly.
I am married to a smoker, I was raised with a smoker and I have 3 asthmatic siblings. We now live in a garden unit and after 2 weeks of moving in we had a complaint about my husban’d’s smoking, our dog barking and pruning the trees! All those matters were addressed and our solution to the smoking was to erect a semi-permanent gazebo where my husband smokes this was a win win as the smoke no longer drifts upstairs and we have an all weather sitting area. Another suggestion would be to install an air conditioner in the rooms most affected or a fan in front of the said window which could be turned on when you are in the room.
Of course it’s offensive and unhealthy (I’ve not known anyone to die from 2nd hand smoke) but it’s not illegal and nor likely to be anytime soon as the government make millions of $$$ in taxes!
Commiserations but the same people who complain about smelling cigarette smoke forget that they contribute their own smells be it BO, constant flatulence, smelly toilet odour, stinking cooking, smell
that flows through the ventilation system in a block of apartments. Obviously oblivious and obviously insanely one sided.
People do die from secondary smoke. A non smoking colleague died from lung cancer after spending most of his working life in close contact with customers who were heavy smokers.
My father lived with a smoker day in day out for 67 years. When asked by a doctor whether he was a smoker he replied, “I’m a heavy passive smoker”….He died at 96 years of age of natural cause.. So, not all people die of lung cancer from passive smoking around them.
What a load of whack jobs these people are, the type of trouble makers you don’t want in your complex, OH ! the smoke is floating downwards onto my balcony, rubbish! OH ! it is coming in the window, shut the widow you fool. A couple of these constant complainers in a complex ruin it for everybody. Also, I have noticed these complainers have plenty of foibles themselves, like bikes in lifts, dog crap all over the place, feeding birds on balconies and generally being all-round nuisances.
I don’t agree that those who complain of smoke going into their lungs are ‘whack jobs’ or ‘fools’. No one should have the right to override my choice to be a non-smoker and no one should have the right to effectively force children to breathe carcinogenic material into their lungs. The smoker has the benefit of a filter on the end of the cigarette which is thrown away (usually littered on the street because for some reason smokers seem to think that the world is their ashtray) but for the passive-smoker, their filter is their lungs – which cannot be thrown away when soiled with the carcinogenic tar and other chemicals found in high concentration in cigarette smoke. If the smoker was a factory, it would be banned for belching an unacceptable level of toxic chemicals into the atmosphere, yet smokers think they have the right to destroy the air-quality of those around them. One might say that the foolish whackjobs are those who choose to smoke something which is not only highly addictive but can kill – but I shouldn’t.
I have been woken up at early hours of the morning (I’m talking 4am & 5am) to cigarette smoke wafting through my bedroom window. I reside in a unit complex.
As it is summer I should not be the one having to close my window and put the air-con on – a cost that I cannot afford due to been made redundant.
The stuff stinks up my whole unit!
Well Peter I’m a proud whack job then, wanting to protect my 2.5 year old son from the updraft of smoke into our unit, which exacerbates my asthma to boot, lucky us. We shouldn’t have to shut our windows and doors every time someone lights up, when there’s such beautiful breezes coming into the unit. And we haven’t complained once [removed – admin] because we have sweet [removed – admin] rights. We don’t leave bikes in lifts, have dogs so no dog [removed – admin] anywhere and no pets, we’re not loud as we’re respectful of neighbours. Don’t label people you know nothing about, sounds like you’re rattling off the list of a very specific group of people where you live and therefore assuming everyone who is a non smoker who feels they deserve to breathe normal air are a bunch of [removed – admin] who ruin it for everyone. We spoke to another couple in the unit who had to permanently leave their doors shut because of this new person who moved in, who has an addiction they can’t get on top of. So well done smokers of the world in high rise buildings, making sure you have rights too! I’d love to find a way that I can waft down some good old blood and bone to them every time they light up. Wonder how quickly a solution would be found then cause clearly they’re made of money seeing as tobacco costs are through the roof. Nothing will ever change and asthmatics will need to suck it up (no pun intended) because the government [removed – admin] out of their sales.
The smoke drift issue is driving me insane. I have a toddler and baby whose young lungs I want to protect but our upstairs neighbour always smokes, and the smoke always drifts onto our balcony. Asked the body corporate to change the by-laws to put the onus on the smoker to ensure their smoke doesn’t cause a nuisance, even when they smoke in the ‘privacy’ of their own balcony. This is a law that has been adopted in New South Wales, which I thought was a great solution because it doesn’t actually ban smoking, it just forces smokers to be more conscious of people around them.. My body corporate is hiding behind the strict letter of QLD law, saying they can’t (or won’t) include such a by-law.
My question is: does this suggested by-law breach the oppressive issue mentioned in one of the threads above? Would it pass the test if it were ever to be challenged?
As an aside, I find it astounding that the QLD government has numerous laws in place to protect children from exposure to cigarette smoke when they are at school/daycare, at a playground or sporting event – they are even protected on car journeys, which is interesting as it is not a public space – yet there is this gaping lack of protection the minute the children arrive home. This borders on negligence in my view – after all, where do children spend the bulk of their time outside of school? Hello, home!
Hi Kim
Chris Irons, Hynes Legal has responded to your comment in the article above.
Does anyone know what the case is where the unit building is owned by one individual? So, no real body corporate. Could the sole owner request that no one smokes on their property?
Thanks very much
Hi Jasmine
The following response has been provided by Chris Irons, Hynes Legal:
So long as a building is registered as a community title scheme, it technically has a body corporate, even if the one person or entity owns all the lots.
Obviously if it is the one person then they will have no issue in getting things ‘passed’! But if and when only one lot sells, the new owner has rights. Equally, if and when there is a new tenant in the building, they too have rights. Those rights might extend to challenging by-laws that otherwise seek to prohibit an activity.
The golden rule: by-laws are meant to regulate, not prohibit.
Neighbours of multi unit complex smoke on the balcony resulting in smoke drift through my window and directly into my room i share with two babies. This happens in every room including the kitchen. I am reluctant to open my window for a change of air as there is a strong risk smoke will drift in. At times I have left the window open, smoke will waft it as frequently as every 15 minutes, it’s absolutely disgusting and inconsiderate. When I spoke to my landlord, who owns the buildings, he advised that he could only address smoking in the common areas and that he was unwilling to ask the neighbours to stop smoking on their balconies. This is disgusting and should not be permitted- why should I or my children be subject to people’s second and third hand smoke whilst breathing in my own home? They can choose to smoke elsewhere but we can’t choose to breathe elsewhere? The laws should seriously change to stop people in multi unit dwellings smoking on their balconies as they are forcing their toxic smoke onto neighbours, The Cancer council, amongst several other organisations make it clearly known that there is no safe level of smoke inhalation and exposure to second hand smoke carries risks of disease, cancers and Sudden Infant Death Syndrome. As quoted from the Cancer Council website: “No-one has a legal or civil right to do something if it infringes upon another persons right to health and safety. The act of smoking when it results in the involuntary exposure of others to the cigarette smoke will put at risk the health of those others.”
I don’t understand why the rights of smokers are more important than the rights of those who choose not to smoke. Thinking of starting a petition and addressing the government to change its rules regarding this- It should not be left to Strata by laws or Owners Corporation to determine whether we get to breathe clean air!
I completely agree! We are in the same position and no one cares or wants to do anything about it. We have tried talking to the neighbours and on-site manager. Makes it hard when it’s the on-site managers son in the unit so they aren’t doing anything about it. They not only smoke corgareets every 15mins from 7am until after midnight EVREYDAY!! They also smoke weed. It’s so unfair we have to live this way and it seems there is nothing I can do about it. I get constant headaches and have breathing problems but the smokers are the victims!! It’s so unfair!! Is there anything I can do?
Hi KK
Regarding your comment “They also smoke weed”, you may wish to take a look at our article QLD: What to do About A Meth Lab or Other Illegal Acts in Apartments as Chris Irons addresses this problem.
Hi CR & KK
Chris Irons, Hynes Legal has responded to your comment in the above article.
Hi. Totally agree. After significant secondhand smoke constantly coming from apartments above and below us (and not just regular smoke but both those really foul cheroot cigarettes and other illegal smoke), we started complaining to the complex management as it was becoming a nuisance preventing us from using our balcony or enjoying fresh air with our doors or windows open whilst the smokers got to go out and enjoy theirs, forcing us to close everything up doors, windows etc. and live inside. When they have not repaired our aged broken down aircon and our faulty old ceiling fans we remain cooped up in our apartment, an unpleasant situation. especially when it’s very humid.
Managements response to date has been to label us as problem tenants for complaining about the constant smoke drift from neighbouring apartments. To the point we now just don’t complain about excessive noise, fighting or other things for fear of being evicted or our tenancy nit being renewed.
We do not have 2 cars so need to live here so we can both access workplaces so moving is not an option.
It just seems so very unreasonable for the government to think it even reasonable for strata tenants to be exposed to second hand and third hand smoke with little regard for our health.
I suggested smoke free buildings but of course that was not going to happen, so we continue to be exposed every day and night and have zero right to protect ourselves because it takes away a smokers right. Doubly hard not to be labelled difficult when the complex manager smokes.
The right to fresh air should be absolutely paramount and the well documented evidenced based knowledge and risks of exposure on second hand and third hand smoke should be enough for Queensland laws to change to protect people from secondhand smoke and smoke drift in strata living. Do we have to resort suing the government because they are permitting a known dangerous situation Why is the govt preventing non smokers from any avenue to protect themselves? Tenants in strata living situations should not be at the mercy of a judiciary who do not recognise the nuisance caused by smoke drift. The risks are worse for us because we have no rights. Smokers have all the rights in strata smoke drift. Very dangerous, very frustrating.
You need to find out where the smoke drift is coming from. Once you do, it will be up the body corporate or lot owner to ensure smoke does not get in to our flat.
Though a simple solution is to create a by law rule forbidding smoking on balcony due to OHS concerns. Probably get this by law enforced by the tribunal if you can.
Hi LVC
The following response has been provided by Chris Irons, Hynes Legal:
What you are saying is not correct. By-laws are meant to regulate, not prohibit. It’s highly like a by-law purporting to prohibit smoking would be found invalid if challenged through the Commissioner’s Office. There is considerable caselaw on this topic.
Also, by-laws are enforced either in the Magistrates Court or in the Commissioner’s Office, not ‘the tribunal’.
I refer you to this excellent article:- https://www.propertyobserver.com.au/forward-planning/advice-and-hot-topics/67351-are-victorian-apartment-blocks-the-new-no-smoking-areas-stephen-raff.html
It’s a case of a person’s right to live free of second hand smoke v person’s right to smoke. Regardless case law changes often and I see it moving in the right direction.
Wonder if the anti-smokers are also anti-alcohol?
This is more dangerous by far!! Why not put pictures of the domestic violence abused victims, general violence victims, the abused children, and the needless road deaths on labels of ALL bottles/cans/casks of alcohoL.
So you may live next door to a smoker, but thank the Lord you do not live next door to a loud and abusive alcoholic.
I rest my case.
Jenny
Hi Jenny,
Neighbours who smoke is way worse as eventhough there is a direct link between 2nd hand smoking and increased risk of death in their victims we in QLD can do very little about it. 2nd hand cigarette smoking drifing into your home continues unabated. Many of us have been complaining for years and gotten nowhere. Whereas, you can do a lot to prevent the affects of an alcoholic abuser; there are countless laws, willing assistance and support and its somewhat easier to substantiate the victims claims of abuse. Thats not the case with the silent killer of 2nd hand cigarette smoke even though its been already proven beyond doubt that it kills.
Derick
Good morning
I am the owner of my garden unit and I smoke. I am not a chain smoker but I prefer not to smoke inside but out on my verandah when I do have a cigarette. The area of my outdoor table is about 20 feet away from the neighbour’s (who is renting) front door on my right, there are no neighbours on my left side. I have only just moved back into my unit after 18 months away – I have been here less than 2 weeks..
My neighbour said she didn’t mind as I am a light smoker but since a few days ago, every time she hears my screen door open she starts to cough… she does not cough on a regular basis.
I am a very health conscious person apart from this habit of mine and I will not give it up – I find it a stress buster during these trying times as I am in self isolation at present due to being over 70. I think she should just close her window if she hears me come out on my verandah, that is what I would do. As far as I am concerned, it is not illegal to smoke on my own property. There are are no other close units around me, the area out front is all gardens – there is just this unit on my right.
Jenny
Hi Jenny, you are knowingly causing discomfort to your neighbour, it is not her responsibility but yours, she has the right to leave her windows open all day without interference, you are causing her stress and putting her under smoke drift hazard. She obviously can’t tolerate it but doesn’t want to be rude to you, you could be thanking her
“There is also nothing stopping you discussing with your committee your concerns” and similar comments always make me laugh.
Owners whose concerns are being reported have almost certainly have a committee that is unwilling to engage with them and have no chance of getting elected….just saying.
In the article above about Covid-19 patients, there is most certainly evidence to link smoking with outcomes of patients. In Italy the data and death rates are closely linked with smoking. I am unable to post web address here , but a Google search will provide this data.
By allowing smoke drift to interfere with quiet occupation of residents of unit complexes during home isolation, we are creating a health hazard and a breach of rights to enjoyment of our personal space.
There is nothing concrete to say that deaths in Italy are linked with smoking. The majority of deaths are related to old age you rarely see 80-90-year-olds smoking. Italy has one of the oldest populations in the world.
Hi,
My partner and I are non-smokers and we are also encountering similar situations like most of you such as closing the windows all the time, and or being woken up by cigarette smoke while sleeping and or can’t even have fresh air. The furniture and bedding are filled with smoke due to the lingering smoke in the unit as we can’t open the windows and doors to have fresh air as we have to close the doors and windows to combat the smoke coming from the smokers. I understand that they can smoke on their balconies and there are no such laws to stop them. You mentioned about “constitute unreasonable interference” is deemed unlawful, but to what degree of unreasonable interference is actually deemed unlawful. It seems to me that this unreasonable interference is rather ambiguous to a degree that favours the smoker. If a chain smoker is allowed to smoke on the balconies, you would have thought that this behaviour would be deemed “unreasonable interference” as we are not talking about “mild smoking habit or two or three a day”, but chain-smoking.
I would like to know what is deemed “unreasonable interference” that is unlawful? Are there any concrete examples or clauses that you could provide?
Thank you for the time spent on answering my questions.
Regards,
Sharon
Hi Sharon
We’ve received this response from Chris Irons, Hynes Legal:
the best example I can give you from a Queensland perspective is a case known as Norbury v Hogan. The article above goes into some detail about what the ‘standard’ is in smoking-related cases.
Each instance is considered on its merits and always considered case-by-case though. Also, there may be several options for non-legal approaches to resolve the issue or at least, reduce the impacts of the smoke. It might be something you can discuss directly with the smoker or your committee. Sometimes an alternative dispute resolution approach to the issue might get you some good outcomes.
In my unit complex, the tenant next door smokes heavily and due to natural air flow all the smoke got into my master bedroom and i could no longer use it… while i’m sleeping on my only other bedroom, the tenant below my unit also smokes and all the smoke got in as well.
The matter has been expressed through body corporate to the tenants without seeing them changing their smoking habit, and that the onsite property manager who looks after both tenancy has been unhelpful and unfriendly.
Don’t know what else to do and what to do… really upsetting. What kind of proof is required for me to show their interference to my living is ‘objective’, and what can be done after that?…
Hi Agnes
We have received this response from Frank Higginson, Hynes Legal:
There may be a noun for a group of people behaving unreasonably, but I don’t know what it is.
The issue from a legislative perspective is that the rights with respect to action about unreasonable interference apply against individuals – not groups. If you are surrounded by a group of smokers, then collectively that may constitute unreasonable interference generally, but not at law, because each one of them on their own might not be the sole cause.
After that, you need evidence and we covered that in the article above.
Unfortunately, there is no simple answer.
There are peristent smokers in my non smoking government townhouse complex affecting my health adversely, aggravating a dangerous heart condition. The property manager just keeps sending reminders. Tenants know there are no other consequences so continue, despite my pleas to stop before I end up in hospital again from it, or worse. Particular airconditioning settings tend to suck the smoke inside also, not that I can afford to be running the airconditioning. This behaviour is threatening my life and no one is taking the proper action to stop this behaviour, although one tenant has owned up to the property manager. Its very distressing. And I cant afford to move out of this government housing. Where do I stand?
Hi Nikki
Just wondering how you decide the smoking causes an unreasonable interference to someone else? I’m currently trying to negotiate with the corporate manager as my new neighbours are literally smoking every half an hour morning and night nonstop. It’s now very difficult for me to get any fresh air outside. I have to close my balcony doors almost all day 7 days a week. For me it does cause unreasonable interference however I’m just not sure how I approach the body corporate on this matter.
Many thanks!
Cheers
Nina
What is viewed as a reasonable amount of cigarette coming into ones home, (living/dining, bedrooms, patio) from a neighbour smoking on their balcony? Would an average of 3 to 4 cigarettes an hour, 16 hours a day be classed as reasonable?
Regarding the Norbury vs Hogan, I don’t understand how the (a) clause about being a hazard cannot be argued given we all have lungs and that smoke has been objectively shown to be toxic. Is it that the law hasn’t recognised the harm to health from second hand smoke?
I’m living in a bloc of units, I am a smoker, I pay a lots of tax for my pleasure, and I love my lifestyle, after work to have a cup of coffee and smoke, people who don’t like the smell of it can shut their windows, it’s as simple as that. I don’t like many smells, or noises, and that’s what I do instead of winging and complining..
It’s a solution for anything we don’t like.
That’s a selfish comment just there. We’re not talking about just a Friday night. Smokers are persistent and smoke remains in the surrounding units. I bet you’ll find that most if not all complaints are due to excessive smokers. If we all have to abide by laws to not be a nuisance and impeding on our neighbours with other things like noise and other pungent odours or hazardous fumes like paint and furniture oils, then smokers should also abide. It’s everyone’s quality of life being sacrificed at the expense of your own. And why do I have to get up at 4 and 7, 8,9,10,11,12 every morning And 1,2,3,4,5,6,7,8,9,10,11 every afternoon/evening to shut all my windows and doors, explain to my property owner that my unit smells of smoke where it’s prohibited for smokers to leave their doors and windows open while they smoke. Should the smokers call all the surrounding tenants to shut their windows prior to them smoking each time to warn us? Impractical yes, so the solution is to leave the area to smoke. Go for a walk?
You have every right to smoke but no right to force others to modify their lifestyle because you do.
When you smoke YOU should close YOUR windows so that your neighnours are not adversely affected.
There are many things thst apartment occupants should refrain from doing … no doubt you would not be happy if your neighbours played very loud music whenever they pleased and you had to close all your windows.
My guests, including family, are not permitted to smoke on my balcony; I accompany them to the street where there is a bin and stand up wind.
Relying on an objective test any reasonable person would find smoking on balconies inappropriate.
What is the law about smoking in an industrial complex – classed as low impact industry?
Thanks
Hi Rosa
We’ve received the following reply back from Todd Garsden, Hynes Legal:
The rules are the same for any strata scheme whether it is commercial or residential.
Hi, can a tenant smoke on an open air balcony or just owners? Can a property management group enforce no smoking on balconies?
Hi Mark
We’ve received the following response back from Todd Garsden, Hynes Legal:
There are no differing rules between owners and tenants – the rules are the same and what matters is whether the smoking causes an unreasonable interference to someone else. If it does – then the smoking is unlawful.
Tenants above continually throw their cigarette butts over the balcony onto the common grassed property area almost predominantly used by the ground floor unit.
I am forever picking up old butts before the grand children come over to stay n play.
Is this fair or legal
Hi Peter
We have received the following reply from Frank Higginson, Hynes Legal:
No – this is not fair or legal.
But it is not so much a smoking issue as much as it is a by-law enforcement issue about littering the common property. It could be bottle tops, paper air planes or cigarette butts. The principles are the same.
You should take this up with your committee about enforcing by-laws and if they don’t do that there is a process you can follow under the BCCM Act to require them to or do it yourself.
But it also could start with a quiet word with your neighbours about politeness with this stuff.
Not that it bothers me that much but a/the smokers in a unit below would be infringing on my right to breath comparatively clean air
Good afternoon
Can a strata owner smoke on their own open aired balcony?
Thank You,
John McCully
Hi John
We have received the following reply back from Frank Higginson, Hynes Legal:
Short of the smoking being chain smoking occupants are free to smoke on their balconies. The above article addresses this…