THANK YOU FOR NOT (RUSHING TO BAN) SMOKING

Everyone loves a simple solution to a problem. That is what has been delivered for smoking in community titles schemes.[1] It’s now deemed to be a nuisance for an occupier to regularly expose someone else to smoke, and a body corporate can now make a by-law banning smoking on all the common property and an outdoor area of a lot.

Queensland’s strata market is about to be flooded with precedent by-laws to ban smoking. But a “one-size-fits-all” solution may not be appropriate for every scheme. Think carefully before suggesting or adopting them. You may develop buyer’s remorse in a few years, and it will be harder to unwind a by-law that has had unintended consequences.

Cause and effect

I used to live in a quiet suburban pocket. I didn’t move house. My suburban pocket has stopped being quiet when an arterial road was closed for construction work. The quickest way to navigate around the closure has been for cars to take a “rat-run” through our suburban pocket.

My wife, who requires pitch darkness and deathly silence to stay asleep, is a little upset. I am a very deep sleeper, but what ails the wife, ails the husband. So now my wife must put up with significantly more traffic noise making its way through our neighbourhood, and I must lend a sympathetic ear each morning to her complaints.

If you close a road, the traffic will simply flow onto another road.

Before proposing a ban on smoking on the common property and external areas of lots, consider: where will the traffic go? The answer is going to change from scheme to scheme.

Where there’s a will, there’s a way

Banning smoking on all common property and external areas of a lot is going to:

• send smokers to areas of the scheme that they think are not common property;
• send smokers inside their lot; or
• cause smokers to drop their habit altogether.

I have listed those behaviours from most to least likely, on the assumption of compliance with the by-law. I think the most likely and recurring behaviour will be noncompliance, but I will come back to this point.

Let’s say you have a high-rise apartment building. Banning smoking on balconies will lead to greater use of the elevators / stairs, and the smokers will find the most comfortable place immediately outside the scheme’s boundaries to partake. That will affect the appearance, amenity and cleanliness of that boundary area. There will be cigarette butts on the ground. As it is outside the scheme land, a littering by-law won’t apply and a caretaking agreement is most unlikely to extend to that area.

It is less likely that a smoker will take it indoors. Tenancy agreements almost always ban smoking inside the property. But if the smoker is an owner-occupier and chooses to smoke in their living room, then a new and unwelcome odour may take up residence in the common hallways.

These new laws are aimed at addressing and mitigating the consequences of smoking. In the same spirit, it would be prudent to consider the consequences of introducing a ban or restriction and being ready to deal with those consequences.

If you don’t want a huddle of smokers at the front gate of your strata community, then think about alternatives. Is there an isolated part of the common property that can be repurposed as a comfortable and convenient smoking area? If you build it, they will come.

With great power comes great responsibility

The smoking ban won’t take effect unless a by-law is approved by special resolution and then recorded in the scheme’s community management statement.

A body corporate has a duty to enforce its by-laws and must act reasonably when doing so.

Strict and onerous hard flooring by-laws were in fashion about 5 – 10 years ago. Some committees over the years formed the view that those by-laws were too difficult to comply with and decided not to enforce them. Adjudicators have compelled them to do so.[2]

As I said earlier, if a by-law of this kind is introduced, then I think the most likely and recurring behaviour will be noncompliance with it. Committees will then be duty-bound to take enforcement action.

Noncompliance will be prolific because it may take a smoker longer to walk to and from the front gates than what it does to have the smoke. Add some bad weather into the equation, and each smoker is going to run a mini risk-assessment each time they want to indulge by balancing the inconvenience of going for a walk against the risk and consequences of getting caught by the body corporate.

A smoker may suffer the inconvenience of a long walk during working hours or when they are out shopping. But smoking within a workplace risks the loss of one’s job, and smoking in a shopping centre risks on-the-spot fines and ejection.

A body corporate can neither fine nor evict an occupier for a by-law contravention. Fines can only be imposed by a Magistrate after a lengthy court process, and the juice is rarely worth the squeeze in that exercise.

Again, bodies corporate that adopt a no smoking by-law will still be duty-bound, and expected, to take enforcement action. All it takes is an occupier to issue a BCCM Form 1 complaining about a neighbour smoking. That may thrust the body corporate into a legal proceeding if the smoking doesn’t stop.

Don’t develop buyer’s remorse

I don’t think you should assume that all, or even many, smokers will drop the habit if a by-law of this kind is made. If a body corporate makes it difficult and inconvenient to smoke, the committee must be ready to invest time and resources in dealing with the inevitable noncompliance that will follow by way of enforcement action: (1) by-law contravention notice, (2) conciliation[3], (3) adjudication, and then (4) enforcement proceedings if the adjudicator’s order is contravened.[4]

If at some point in the future a committee thinks the by-law banning smoking is too strict, it would need to call a general meeting to pass a special resolution to unwind or amend the by-law. Given the strong views against smoking, that may be difficult to achieve.

So, if you open this door, you may not be able to close it, so you need to get it right the first time.

Carefully pick your battles

The most prudent approach would be to tailor a by-law to the circumstances of a scheme and introduce measures to mitigate the consequences when the smokers look for their new haunt.

A body corporate is not obliged to adopt a by-law banning smoking on all the common property and every outdoor area of a lot. The ban can be in relation to part of the common property or part of an outdoor area of a lot.

That won’t mean the smokers have a green light for any areas not covered in the by-law. Any neighbours aggrieved by second-hand smoke are now robustly protected by the new section 167(2) that makes it a nuisance / unreasonable interference for an occupier to regularly expose someone else to smoke. But it would be for the aggrieved occupier to raise the dispute with their neighbour if they say they are regularly exposed.

So, pick your battles or be ready to fight them all.

Key takeaways

• The BCCM Act has been amended so that regular exposure to smoke amounts to a nuisance. What more does the body corporate wish to achieve by going one step further and making a no smoking by-law? Understand that objective, and then assess the best way to achieve that.
• Encourage the committee to put themselves in the shoes of a smoker. If smoking is banned on the common property and external parts of a lot, where will they go and will that be an ideal situation?
• A by-law can only regulate the use of a lot and common property. If the smokers are pushed to the curb side (outside scheme land), the by-laws won’t apply to them there.
• Consider whether there is an appropriate part of the common property that can be re-purposed as a smoking area, or if facilities (i.e. bins) can be established close to the curb to reduce littering.
• Accept that there will be noncompliance with a no smoking by-law, and the community will expect the by-law to be enforced.

About the author

Jason Carlson has practiced in strata law for 15 years. He has authored Smart Strata’s most read articles for the last two years in a row.

He was a partner at Grace Lawyers Queensland from 2015 – 2023. He built the firm up from a three-person team in a serviced office to a team of about 25 people spread across multiple offices and recognised by Strata Community Association as Australasia’s leading strata services business for 2022-23. He then resigned from Grace Lawyers in 2023.

Over 2024, Jason has continued as a director of Strata Community Association while working on passion projects in the strata industry.

You can connect with Jason on Linkedin: www.linkedin.com/in/jasonalexandercarlson

[1] By sections 167(2) and 169A of the Body Corporate and Community Management Act 1997 (Qld), which took effect on 1 May 2024.

[2] See Admiralty Towers II [2021] QBCCMCmr 519 and Abian Botanic Gardens [2023] QBCCMCmr 385.

[3] A failure to comply with a by-law contravention notice is an offence, punishable by a small fine a Magistrate may imposed. This is an alternative course to conciliation. But the modest size of the fine does not balance well against the costs and inconvenience of having a fine imposed.

[4] That’s the conventional path to enforce a by-law. There are unconventional yet effective paths that can be taken, but a description of those is for another time.

Article Contributed by Jason Carlson, National Board Director, SCA (Qld)