This article about smoking in NSW strata schemes has been provided by Allison Benson, Kerin Benson Lawyers.
In more good news for non-smokers, the NSW Civil & Administrative Tribunal made orders on 11 October 2022 preventing lot owners from smoking on the balcony of their lot or anywhere within their lot that would cause smoke, fumes or odour from the tobacco to drift into another lot. The case was Pittman v Newport [2022] NSWCATCD.
The application was made in the Tribunal by lot owners affected by smoke drift after their requests to their neighbours to prevent the smoke drift failed and their request for the owners corporation to take action was refused.
The action was under section 153 of the Strata Schemes Management Act 2015 which requires lot owners and occupants in a strata scheme not to use or enjoy their lot or permit it to be used in a manner or for a purpose that causes a nuisance or hazard to other lot owners and occupants.
Nuisance is when there is an unlawful interference with a person’s use or enjoyment of land, or of some right over or in connection with the land. It occurs when the issue complained of is created, adopted or continued by a person, other than in the reasonable and convenient use of their own land, which, to a substantial degree, harms another owner or occupier of the land in the enjoyment of that person’s land. In layman’s terms, it means that lot owners must not use or permit their land to be used in a way that unreasonably inconvenienced another lot owner using their land.
Senior Member French stated in the decision that “[t]his is a relatively high-density type of communal living. … In my view there is a degree of reciprocity (give and take) required of occupiers of land in a communal environment of this type. An owner of land of this type cannot reasonably expect to be unaffected by their neighbour’s use of their own land.”
Following on from the decisions (which I have previously written about on Thoughts From a Strata Lawyer…) in Bill Sheath and Rhonda Sheath v Rick Whitely and Sandra Whitely [2014] NSWCATCD & Gisks v The Owners – Strata Plan No 6743; The Owners – Strata Plan No 6743 v Gisks [2019] NSWCATCD 44 (28 May 2019) it was held that it was accepted that there is no safe level of exposure tobacco smoke and that it posed a serious risk of harm.
In this case the unreasonable inconvenience was that the applicants had tried to minimise the effect of smoke drift by not using their balcony and ensuring the balcony doors and windows were kept closed. These measures were however ineffective at preventing the smoke drift entering their lot. The Tribunal found that it was unreasonable that the applicant’s use of their balcony was restricted to avoid cigarette smoke drift.
Where does this take us? Well, it further establishes that those living in a strata scheme must be aware of the effect of their actions on their neighbours. It paves the way for other affected lot owners to obtain similar orders and could be used to support claims in respect of odours of other sorts and noise. For example, a lot owner using their lot to teach students to play a loud instrument or, a lot owner feeding wild birds that create noise (and potential odour and pests).
Allison Benson
Kerin Benson Lawyers
E: [email protected]
P: 02 4032 7990
This post appears in Strata News #629.
Disclaimer: This is general information and should not be considered to be legal advice. If you are affected you should obtain legal advice specific to your individual situation.
Have a question about smoking and nuisance in NSW apartments or something to add to the article? Leave a comment below.
Read next:
- NSW: Last Gasp For Smokers in Strata
- NSW: What are the rules around smoking in strata buildings?
- NSW: Taming Keyboard Warriors – How to Deal With Unreasonable Strata Communications
This article has been republished with permission from the author and first appeared on the Thoughts From A Strata Lawyer… website.
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Would there be any situations in which a tribunal member would dismiss a nuisance smoking case being brought against a lot owner in NSW?
Hi David
Allison Benson, Kerin Benson Lawyers has responded to your comment:
There is always potential for a nuisance case to be dismissed. The most common reason is for lack of evidence.
Hi David
For this question, we suggest you seek legal advice.
I am a non smoker but see this as a draconian measure where we are no longer allowed to live our lives without someone complaining about something. We have had the dogs and cats issue, noise, etc., etc. We can’t all live in detached properties so there must be some give and take. No Smoking in Common Areas I agree with but really in your own home and balcony where does it end. Ban the cigarettes make it unlawful, but it’s in the hard basket because government wants the exorbitant taxes that it creates.
I read this article with great interest. I am unfortunately a non-smoker in exactly the same situation in an older block without a no smoking by-law. My next-door neighbour leans on this as justification for smoking on her balcony daily, which seeps into my house. I have tried talking to her, letting her know that her smoke is drifting into my house, to no avail. She says she is “trying” to help me out by only smoking on the far side of her balcony, but it still ends up in my living space.
I also have two children living here, and she doesn’t care that they are having to breathe her second-hand smoke almost on a daily basis.
I am on the executive committee, and plan to table a request to adopt the model by-laws at our next AGM in March, but I have heard through the grapevine that she is planning to block it.
I refuse to back down. If the worst happens, do I have hope under section 153?
Hi Sandy
Allison Benson, Kerin Benson Lawyers has responded to your comment within this article: NSW: Q&A What are the rules around smoke and smoking in strata buildings?