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Smoking as a Nuisance

Cigarette smoking can be more of a nuisance for some people than others. In the QCAT decision of Norbury v Hogan [2010] QCAT 296 the President of the Tribunal had to consider the effect of Ms Norbury’s smoking on her neighbour Mr Hogan. The QCAT decision was an appeal on a question of law from a departmental adjudication.

Smoking as a nuisance

Mr Hogan had originally taken his complaint about Ms Norbury’s smoking to departmental adjudication. At the adjudication he led evidence of his medically diagnosed sensitivity to cigarette smoke. Mr Hogan alleged that cigarette smoke from Ms Norbury in Lot 2 drifted into his Lot 5, causing him a significant nuisance. Mr Hogan asserted that Ms Norbury’s smoking amounted to a breach of Section 167 of the Body Corporate and Community Management Act 1997 (“BCCM ACT”) which provides that:

“The occupier of a lot included in a community titles scheme must not use or permit the use of, the lot or the common property in a way that –

(a) causes nuisance or hazard; or

(b) interferes unreasonably with the use or enjoyment of another lot included in the Scheme; or

(c) interferes unreasonably with the use of enjoyment of the common property by a person who is lawfully on the common property.”  

The Adjudicator’s decision

In the first instance the Adjudicator found there was a reasonable likelihood that persons smoking on Lot 2, including Ms Norbury, or the adjacent common property, might cause nuisance to Mr Hogan, including by unreasonably interfering with his use of his lot. The Adjudicator also found that Ms Norbury was aware of the harm the cigarette smoke was causing Mr Hogan, due to his medical sensitivity, and that she did not take reasonable steps to minimise the effects of her smoking.

Taking this into account the Adjudicator ordered that Ms Norbury give consideration to the effects of cigarette smoke on Mr Hogan, that she take reasonable steps to ensure that smoking in Lot 2 or adjacent common property did not cause a nuisance to Mr Hogan or to cause unreasonable interference with his use and enjoyment of Lot 5.

The Adjudicator’s orders were based on two key findings:

  1. That the cigarette smoke emanating from Lot 2 was, on a subjective test (that is, with specific regard to Mr Hogan) unreasonably interfering with his use and enjoyment of his lot; and
  2. Because of Mr Hogan’s particular sensitivity there was a reasonable likelihood that the cigarette smoke would, in fact, cause nuisance or unreasonable interference with Mr Hogan’s use and enjoyment of his lot.

The law of nuisance

Cigarette smoke is just one of a number of different types of nuisance that can arise in a community titles scheme context. Noxious fumes, dust, noise, vibration, sewerage, odours and light are all types of nuisance which can also arise. While considering Mr Hogan’s plight, the Tribunal President also considered the application of the common law principles of nuisance within the community titles scheme context. The resulting decision provides a useful précis of the law including:

  1. While the BCCM Act does not expressly confer a right on an owner to use the common property in a manner, or for a purpose, that does not unreasonably interfere with the exercise of similar rights by others, that is implicit in Section 167.
  2. There is no statutory definition of ‘nuisance’ or ‘unreasonable interference’ and therefore recourse to the common law is required.
  3. Private nuisance is an unlawful and unreasonable interference with an occupier’s use and enjoyment of their land or some other right over, or in connection with, it.
  4. Unreasonable interference will depend on the circumstances of each case but the inconvenience must materially interfere with the ordinary notions of “plain and sober” persons and not merely the “elegant or dainty” habits of a complainant.
  5. The nuisance must result in a substantial degree of interference according to reasonable standards for the enjoyment of the affected premises.
  6. Give and take will apply in residential areas so that an ordinary and accustomed use of premises will not be considered a nuisance even if inconvenience to a neighbour is caused.
  7. Nuisance does not necessarily arise because the complainant is abnormally sensitive to the nuisance being complained of.
  8. Where nuisance is unreasonable, liability will normally only be imposed where the harm or risk to the complainant is greater than ought be borne by them.

The correct tests for nuisance

Applying these principles to Mr Hogan’s complaint the President found that the Adjudicator erred in two critical respects. The first is that the cigarette smoke emanating from Ms Norbury’s Lot 2 or the adjacent area of common property had to be of such a character or quantity that it would affect the use and enjoyment of Mr Hogan’s Lot 5 even if Mr Hogan was not overly sensitive to cigarette smoke. In other words, an objective test of whether the cigarette smoke constituted an unreasonable interference was required and not a subjective test.

Secondly, the Adjudicator’s decision was not retrievable because, in effect, the Adjudicator had made no fining with reference to an objective test. In other words, the Adjudicator had only made findings in relation to the likelihood of the nuisance in light of Mr Hogan’s particular sensitivities and not a “normal” person using and occupying Lot 5.

So when is smoking a nuisance?

The decision is useful because it provides some certainty to smokers and non-smokers alike. If cigarette smoke emanating from a lot is of such a volume, quality or character as to be an unreasonable interference to the use and enjoyment of another “normal” owner’s lot then that smoking will be caught under Section 167. Unfortunately it may take clouds of noxious smoke over prolonged periods, in high concentrations. The additional benefit of the decision however is the President’s dissertation on the common law principles of nuisance, which may be relevant in the application of Section 167 to other disputes. Body Corporate Managers, Resident Unit Mangers and Lot Owners should take note of those principles if they are ever party to a complaint that may be caught by Section 167.

This article was contributed by Michael Kleinschmidt, Stratum Legal.


Leave a Reply

  1. Gerald R. Pursley

    With medical proof of passive smoking and effects on us all, I do not understand how our state (Queensland) or any others can still disregard the effects and discomfort of passive smoking. Try smoking in front of an airport door or a hospital or a public building of any type and see how long you light up. But try and sit on one’s own balcony, my home, my space of fresh air and a neighbor below lights up (often) and the smell is so bad it drives me inside. I’m not allergic to it as far as I know, it just stinks. So much so that I have to then come inside, close my doors as it will seep into my apartment otherwise. I realize smokers have rights too, however, the law does not recognize that in front of public buildings but somehow it does when it is a private dwelling. The same smoke causes the same disease, the same annoyance anywhere. It’s a tough one I know but with proof we have today, there should be no question if it effects others, it should not be allowed in private balconies. Smoke inside, close your doors, breath it in yourself, I don’t want to smell it!!!!

  2. max webster

    The same principles apply with such things as scent , curry cooking odours etc etc.

    Go live in a cave if being a miserable poor sole is your lot in life.

    I have no faith in the gangs in community title or the adjudication ? wits.

  3. Carmel DOOLAN

    Here, here, Gerald. I agree entirely with you. It fascinates me how every time you turn the TV on there is some outcry about the death of the coral, or the whales, let alone the dreaded flying foxes, but nary a word about inflicting the very real possibility of lung cancer and other debilitating diseases on those of us who try to live a healthy lifestyle.
    One quick and easy way would simply be for the managers of these apartments to just ban cigarettes completely. Both smokers and non-smokers know full well the health hazards involved. To my way of thinking, it is not beyond the realms of possibility that some time in the future another Royal Commission could be called, to investigate the actions/non-actions of those in responsible positions to provide a safe environment for all residents.

  4. Tony Gough

    A good decision by the President! What an exaggerated lot of codswallop from Gerald and Carmel. I would consider their “do gooder” views to be a nuisance to me if I lived anywhere near them. They should “get a life”!

  5. Ross Anderson

    How does the normal reader reconcile this case with the recent Adjudication favoring the caretaker who was unusually sensitive to pet hair? What is good for the goose should be good for the dander…
    Also, the focus in the smoking case was on common nuisance, but seemingly there was no attention to the prohibition on ‘hazard’. Was this a fault in the pleadings, or is ‘hazard’ not applicable to smoking?