Wednesday, 15th July 2020

register | forgot password?

Passive Smoking

Monday, 27th May 2013

It's a lovely balmy evening, you open the doors and windows to let a breeze through and are confronted by the cigarette smoke coming from your neighbours balcony. It's not pleasant, it is a health hazard but what can you do about it, especially as the person is smoking on their own property.

The Sunshine Coast Daily recently reported (27 January 2013) that "lighting up a cigarette on your apartment balcony will be a thing of the past if smoking bylaws are enforced by body corporate committees across Queensland.

"The dangers of passive smoking prompted regulations to prohibit smokers from smoking in the workplace, restaurants, airports and shopping centres and now there is a push to prevent people smoking on their own balconies."

The article reported that "smokers were entitled to smoke within their own unit but the body corporate was now able to pass a bylaw which prohibited smoking on balconies within the apartment complex or any part of the common property."

"Under the Body Corporate and Community Management Act 1997 a body corporate can set bylaws such as prohibiting smoking, as the legislation gives power to body corporate to impose such rules."

Similar reactions are occurring in other states.  In NSW, Daniel Russell, partner with Chambers Russell Lawyers was asked whether by-laws could be made banning people from smoking on their balconies.

"The main issue here is that balconies are usually within lots, and hence are the private property of lot owners.  The question is then whether the owners corporations's powers make by-laws extend so far as to regulate the conduct of lot owners and occupiers in their own property," Daniel said.

"In Salerno v Proprietors of Strata Plan 42724 (1997) 8 BPR 15, 457 (a decision concerned a commercial strata scheme, but the principles seem sufficiently general to suggest that an owners corporation will generally have the power to make such a by-law."

This by-law however could be challenged and over turned.

"Even though it may be within the power of an owners corporation, Strata Schemes Adjudicators have specific powers to overturn by-laws having regard to the interests of all owners in the use and enjoyment of their lots or the common property (see section 157 of the Strata Schemes Management Act 1996)," Daniel explained.

"Generally any by-law should seek to be as fair and reasonable as possible to minimise the risks of such an application succeeding.  One strategy to minimise that risk for anti-smoking by-laws is to limit the scope of any by-law to smoking that causes a "nuisance" within the scope of section 117 of the Strata Schemes Management Act 1996 or the Common Law."

So what alternatives are there?  Daniel said that other "behavioural" by-laws may have some relevance on a scheme-by-scheme basis.

Generally though the chief issue outside of any by-laws is section 117 of the Strata Schemes Management Act 1996, which concerns behaviour that causes a nuisance.  The Common Law of nuisance might also still have some application.

"In New South Wales the Consumer, Trader and Tenancy Tribunal has held that smoking can be such a nuisance under section 117 (Owners Corporation SP 49822 v May & Ors (Strata & Community Schemes) (2006) NSWCTTT 739) although and Adjudicator in Queensland came to the opposite conclusion on substantially the same issue in Admiralty Towers (2011) QBCCMCmr 264 (23 June 2011)."

"The possible indirect application of the Smoke-free Environment Act 2000 should always be considered, but it does not specifically seek to address the issue of smoke or passing between private residences."

For now there is no single answer.  If your neighbour is reasonable it may be that you can agree they will not smoke on their balcony at certain times of the day when you may be using it or have the doors open.

Tread carefully as this is obviously a very emotive issue.

This article appears courtesy of BCS

Bookmark and Share

Comment from panama.leaks234 on Tuesday, 07th March 2017

I know your expertise on this. I must say we should have an online discussion on this. Writing only comments will close the discussion straight away! And will restrict the benefits from this information. download popcorn time apk

Comment from aieroel on Saturday, 23rd May 2015

"Thanks Market Thailand - Market Indonesia

Comment from Geebee on Thursday, 20th November 2014

All the laws and regulations about smoking in strata properties seem to put the onus squarely onto the victim  of passive smoking to prove that a problem exists. In practical terms this is almost impossible, so thousands of people live daily with the nuisance and health damage caused by selfish neighbors exercising their "right" to light up on their own property. I think the right to breathe fresh air in one's own home should take precedence over the right to pollute, and that the default situation for multi-unit housing should be that smoking is not allowed, and that would-be smokers or landlords who wish to allow smoking should have to apply to body corporates for permission and prove that the smoke can be contained effectively.

Restaurants, trains, planes, shops and even jails are smoke-free. So why should thousands of adults and children be condemned to this health hazard?

Search for services

Find tradesman or property services in your local area.

Search for services