There are few more vexed body corporate issues than cigarette smoking.
Its potential for negative impact in a community titles scheme should never be under-estimated.
Queensland, like many other parts of the world, in recent decades, has undergone a significant shift in the way it regulates cigarette smoking.
What once was acceptable is no longer the case.
A community titles scheme generally involves high-density living – a significant number of people living, occupying, or working, in a relatively small space.
Impacts such as second-hand smoke or smoke drift, that might be manageable in a more spread-out environment, can become an issue in a confined area.
There are legislative provisions concerning smoking that must be considered.
Section 26R of the Tobacco and Other Smoking Products Act 1998 regulates smoking and provides for smoking in enclosed common property areas of community titles schemes.
I will attempt to explain here how cigarette smoking might be addressed and regulated in a community titles scheme – and explore what options could be available.
Firstly – as always – communication is the key.
Take a typical scenario. Neighbours in the lot directly below yours smoke out on their balcony every evening.
It is possible they may not be aware their cigarette smoke drifts up from their balcony into your space.
The first step is to communicate. Go and talk with them. Explain the impact their cigarette smoke is having. See if an agreement can be reached to suit all parties.
The body corporate, or its committee, also may have a role to play.
It can communicate to owners and occupiers a reminder about what by-laws apply that regulate smoking.
When it comes to by-laws, it is important to remember that, in general terms, a by-law is designed to ‘regulate’, not ‘prohibit’.
A body corporate considering a by-law to ‘outlaw’ smoking, in a lot, or on common property, should bear in mind previous orders on the topic, including North Shore Apartments  QBCCMCmr 505: http://www.austlii.edu.au/au/cases/qld/QBCCMCmr/2003/505.html.
Section 180(3) of the Body Corporate and Community Management Act provides that “if a lot may lawfully be used for residential purposes, the by-laws cannot restrict the type of residential use”.
So, while the idea of cigarette smoking may be distasteful to some, it would not generally be possible for a body corporate to prohibit, or even restrict, smoking, in a lot.
Where cigarette smoking is lawfully occurring within the boundaries of a lot, and the smoke is drifting out into another lot, it may be possible to consider a by-law enforcement process.
Of course, there first has to be a by-law in place specifically about cigarette smoke.
Pursuing some form of dispute resolution about a breach of the nuisance provision of the Act (section 167), is another possibility.
The onus is on the party initiating the by-law process, or the dispute under section 167, to demonstrate how the smoking is creating a nuisance.
In particular, adjudicators’ orders have found – for example, in Karmasea  QBCCMCmr 428 http://www.austlii.edu.au/au/cases/qld/QBCCMCmr/2012/428.html – that the test for nuisance includes establishing the activity (in this case, smoking) was “of such volume, or frequency, that it would interfere unreasonably with the life of another lot owner of ordinary sensitivity”.
For accommodation/holiday letting providers, it is important to remember that a by-law “must not discriminate between types of occupiers” (Act, section 180(5)).
In other words, a by-law regulating smoking would not be able to discriminate between what is applicable to lot owners and what is applicable to occupiers/tenants.
Some accommodation providers take great pains to advertise their property as a “no smoking” property, and a landlord may have the option of controlling smoking through the terms of their lease.
While this can be an effective marketing tool, the landlord, or accommodation provider, can only control smoking within the lot.
When making a claim about a property being smoke free, there should be some legal basis on which a claim of this nature is made – for example, has the body corporate made such a decision, and how valid and enforceable might that decision be?
“House rules” and other such guidelines, might be useful in providing occupiers some ideas about parameters for their conduct.
But unless the “house rules” are incorporated into by-laws, they are generally not enforceable.
As always, seeking qualified legal advice may assist lot owners and bodies corporate to better consider some of these complex matters.
For further information and for general queries about the body corporate legislation, please contact our Information Service on Freecall 1800 060 119, email email@example.com or visit our website www.qld.gov.au/bodycorporate.
This article was contributed by Chris Irons, Commissioner for Body Corporate and Community Management.