Living with Smoke Drift
Earlier this year, new legislation changes came into effect for Bodies Corporate in Queensland. This incorporated a number of changes designed to make the operation of a Body Corporate more efficient, through things like electronic notices and meetings. Unfortunately, what it did not do was make any changes to some of the key issues that Bodies Corporate have been complaining about for years, one of which is smoking.
Whilst our colleagues down south have begun to see meaningful decisions and updates to their legislation to incorporate concerns surrounding smoking and second hand exposure, Queensland has yet to catch up in this regard. The legislative review into these issues has been ongoing now for a number of years, with no end in sight.
In the meantime, Bodies Corporate are significantly limited in how they can restrict the rights of residents to smoke within their Lot, which in most cases includes the balcony.
If smoke drift is an issue in your body corporate, read on for our tips to regain harmony.
Whilst any individual owner is free to impose no-smoking restrictions on their tenants, the Body Corporate has no such ability. Over numerous cases it has been consistently ruled that the Body Corporate cannot impose unreasonable restrictions on the fair use and enjoyment of a Lot by its owner or occupier. A Body Corporate can pass a by-law to prohibit smoking on Common Property, but not within the Lots themselves.
Bodies Corporate therefore need to focus on dealing with any issues that arise in a proactive and positive manner. In many cases, the person smoking may have no idea that they are disturbing others. Most residents (including many tenants) will smoke on the balconies of apartments because they believe that this minimises disturbance to others as well as prevents smoke smells from building up within the building. This can in fact have the opposite effect as wind currents can push smoke into the surrounding Lots. A direct approach from the Body Corporate or the on site manager is often appreciated and will resonate better than a written notice or an aggressive confrontation.
The Body Corporate should approach these interactions not with the sole goal of preventing the resident from smoking, but rather reaching some form of compromise that will suit all parties, such as changing the time or location of where they smoke.
In summary, Bodies Corporate should keep the below points in mind when dealing with issues surrounding smoking within the Scheme:
• Nothing in legislation prohibits smoking within the boundaries of an owner’s/resident’s lot
• Bodies corporate should check the plans of the scheme to determine if the balcony/courtyard of an apartment forms part of the lot
• No ruling from an Adjudicator has supported the restriction of smoking within a lot by a body corporate
• Bodies corporate should however make all efforts to inform owners/residents when their smoking is affecting others
• Bodies corporate can restrict smoking on the common property with an appropriate by-law.
This article was contributed by Wayne Hewitt, Partner – Archers the Strata Professionals
Leave a Reply
I was on any upper floor at the end of the building which seemed to attract the second hand smoke from surrounding lots. It was overwhelming inside on many accessions. I spoke to those responsible requesting they go to the back balcony that didn’t attract the swirl. Mostly they were unsympathetic. I took to playing audio on my phone at voice level of a disgusting guttural productive cough for the duration of their cigarette. Sometimes they relocated. I sold and moved to a freestanding home.
Thanks for the article. Could you provide any references to the decisions and legislative updates from other states, please?
Hi John, I’ve included a couple of links to cases below that you can reference. I note that the most recent case that involved smoking (that I am aware of) was in 2019, where the case was successful. However, this was due to the person carrying out a variety of behaviours within the Lot and on Common Property that was clearly unreasonable. The Adjudicator therefore ruled that her behaviour in total was unacceptable, whilst also noting that some of the behaviours (taken on their own) would not normally be a nuisance. It therefore cannot be used as an example purely related to smoking.
I note that some of these below cases were subject to further appeals, which can also be looked at through the QCAT rulings.
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QBCCMCmr/2012/503.html?context=1;query=smoking;mask_path=au/cases/qld/QBCCMCmr
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QBCCMCmr/2009/303.html?context=1;query=smoking;mask_path=au/cases/qld/QBCCMCmr
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QBCCMCmr/2011/264.html?context=1;query=smoking;mask_path=au/cases/qld/QBCCMCmr
i object to having cigar smoke drifting into my unit and barbeque cooking smells of burnt chops etc and smelly fish.
Cant something can be done to prevent this.These people are so inconsiderate and selfish If the shoe was on the other foot they would object!!
Very disappointing. My daughter has a rare condition that makes her prone to cancer and the Body Corporate committee member Sarah lives next to us in a townhouse complex. She knows this and purposely comes outside to smoke when my daughter is playing outside. It’s very unfair to my daughter and nothing can be done.
I say no not because I smoke but also because one size shoe doesn’t fit all
Strange that a body Corp has no jurisdiction on common area that a lot has exclusive use of, such as a balcony, I’ve had many issues with constant smokers where the smoke drift carries into any open window/door on my property.
On-site property manage and body corporate refuse to deal with it as they see only conflict as they have no legal basis to deal with this blight.
The legal bar of proving a persons right to ‘reasonable’ enjoyment has been impacted is nearly impossible as it’s subjective. Queensland law really needs to catch up and reflect the rights of the majority of people who don’t smoke.
Thank you for an enlightening summary.
Yes do understand but what about smoking Marihuana on the balcony?
Also, mention needs to be made of the co-operative role of the on-site manager, who may be able to ask any tenant to ensure that the tenant does not smoke in the lot or balcony/ common property as a term of tenant img.
Having such inter action with the on-site manager is one of the benefits of on-site management( management rights) often overlooked by committees and theBC Manager. In my building , it is appreciated with great co operation.
Strange that government can pass laws which prevent smoking in public areas close to schools and hospitals, as well as in theatres, shops and all public transport – but refuses to pass similar laws governing that behaviour in residential buildings despite the much greater threat to health.