SMOKE WITHOUT FIRE: CAN BODIES CORPORATE BAN VAPING?

Over the last few years, vaping has become increasing popular, especially amongst young people. Federal Parliament is currently looking at laws that may ban disposable and non-therapeutic vapes. But is there anything Bodies Corporate can do now to ban vaping?

Smoking versus Vaping

In 2021, the Commissioner’s Office looked at the issue of cigarette smoking within Bodies Corporate in the highly publicised decision in Artique [2021] QBCCMCmr 596.

But the smoke produced by cigarettes is not the same as the vapour produced by vapes. So, can the findings in the Artique decision be applied equally to vapes?

Fortunately, in August 2023, the Commissioner’s Office looked at this issue in the decision of Dewsbury Park [2023] QBCCMCmr 297.

Facts

The Body Corporate for Dewsbury Park CTS 18314 is a 31-lot townhouse scheme located in Middle Park, Queensland.

Lots 27 and 28 are neighbouring townhouses, each with outdoor courtyards.

The Applicant, Rhiannon Shaw, owned Lot 28. The Respondent, Margaret Jackowski, owned Lot 27.

The Applicant complained that cigarette smoke was constantly emanating from Lot 27. She complained that this had been consistent since March 2020, and that it started early each morning and extended late into the night, every day.

The Applicant claimed that the smoke affected the quality of the air inside Lot 28 and was adversely affecting her health.

The Respondent denied the Applicant’s claim, including because she used e-cigarettes, rather than traditional cigarettes, which emitted vapour rather than smoke.

Decision

The Adjudicator acknowledged that, whilst vapour from e-cigarettes may disappear, this did not mean chemicals did not still linger in the air. The Applicant was still able to detect a distinct odour emanating from Lot 27, despite the Respondent’s claim that vapour from e-cigarettes did not drift.

Therefore, the Adjudicator was satisfied that at least some vapour from the Respondent’s e-cigarettes was drifting into the Applicant’s lot, which exposed the Applicant to vapour and chemical residue.

As a result, the Adjudicator ordered that:

1. the Respondent and all other residents of, and visitors to, Lot 27, must not smoke anywhere in the courtyard of Lot 27; and
2. should the Respondent choose to smoke within Lot 27, they must:

a. smoke inside the townhouse; and

b. take all reasonable steps to ensure the smoke does not affect any person lawfully using another lot or the common property. For example, by closing the windows and doors  of Lot 27 when they are smoking.

Can Bodies Corporate ban vaping?

The decision in Dewsbury Park [2023] QBCCMCmr 297 indicates that vaping is already banned in Bodies Corporate, unless it occurs wholly within a lot and/or does not affect any person lawfully using another lot or the common property.

This is because the vapour from the vape was found to be a “hazard” within the meaning of section 167(a) of the Body Corporate and Community Management Act 1997.

Most Bodies Corporate also have by-laws that require lot owners not cause a nuisance or hazard within the meaning of the BCCM Act, so any vaping outside of lot likely constitutes a by-law contravention too.

Final Comments

As mentioned at the start of this article, the Federal Parliament is already looking at ways to ban or regulate vaping nationally, therefore disputes like those in the Dewsbury Park may become a thing of the past very soon.

However, vaping like cigarette smoking can be addictive, meaning people will likely continue to vape provided they can still obtain e-cigarettes.

Arguably, any Federal ban may also increase the use of vapes within the privacy of peoples’ lots, meaning Bodies Corporate may have to deal with vaping, and vaping-related disputes, for many years to come.

If your Body Corporate requires further advice and assistance in relation to smoking or vaping, please contact us at HWL Ebsworth Lawyers.

This article was contributed by Mario Esera, Partner – HWL Ebsworth Lawyers.