Smoking is a contentious issue in apartment buildings, posing challenges to community living where the rights of individuals must be balanced against the needs of the community as a whole.
It often leads to divisions among neighbours and overwhelms committee members. Strata schemes are characterized by higher density living, with more people occupying smaller spaces. Consequently, issues like second-hand smoke or smoke drift, which are more manageable in standalone houses, can become significant problems in confined areas.
The following is information on the options available to Queensland strata communities to regulate smoking within their schemes.
Can we make a by-law that bans people smoking?
In short, no.
A by-law in a Queensland community titles scheme cannot validly ban smoking completely: a by-law can regulate but cannot prohibit an activity.
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.”
While there may be very strong objections to smoking, the fact remains it is legal to smoke in Queensland and therefore any by-law that completely ‘bans’ smoking will be open to challenge.
Until very recently, no ruling from an Adjudicator in QLD had supported the restriction of smoking within a lot by a body corporate. More on that single decision below.
2021 Adjudicator Decision Bans Unit Owner from Smoking: Hazard instead of Nuisance
The Office of the Commissioner for Body Corporate and Community Management – banned a unit owner in Surfers Paradise from smoking on their balcony in December 2021.
The legal basis for this ruling? – Arguing smoke drift into other lots is a “hazard” rather than treating it as a “nuisance” which was the traditional approach to restrict smoking in a QLD strata schemes.
You can read the full adjudication decision here: Artique [2021] QBCCMCmr 596.
Smoke drift as a nuisance
Nuisances (of all types) in community title schemes are one of the main causes of disputes. Of the varying types of nuisances, smoking has always been at the top of the list of polarising issues.
For many years, adjudicators considered whether the smoke-drift constituted a “nuisance” or an “unreasonable interference” with another lot.
The words “nuisance”, and “unreasonable interference” have specific legal meanings. To satisfy a nuisance or unreasonable interference application, the applicant would need to demonstrate the amount of the smoke-drift, the frequency of it, the severity of the impact, and that the issue was not just the applicant’s increased sensitivity to the smoke-drift.
Previous adjudication decisions considered that occasional smoke drift and smoking odour was often not significant enough to be considered a legal nuisance, or to cause an unreasonable interference with a person’s enjoyment of their lot.
What constitutes a “nuisance”
The legal concept of “nuisance” when it relates to second-hand smoke is ill defined.
In one Queensland case, a man wanted to stop smoke infiltrating his bedroom from his neighbour’s balcony.
Nuisance could only be established if the smoke was of such volume or frequency that it was an unreasonable interference.
Although the tribunal accepted that smoke often entered his bedroom, he was found to have an “abnormal sensitivity” and thus was subjectively affected by the smoke-drift.
Smoke drift as a hazard – New approach for Bodies Corporate
Section 167 of the BCCMA refers not only to nuisances and unreasonable interferences. It also refers to hazards in subsection (a).
In the Surfers Paradise case where the unit owner was ordered not to smoke in their lot, the Adjudicator found that without establishing smoke-drift as a nuisance or unreasonable interference, smoke drift can be established as a hazard.
The decision relied on the following key points:
- The adverse health effects of smoking and second-hand smoke are known
- There is no ‘safe’ amount of second-hand smoke according to law
- Any second-hand smoke is therefore a hazard to a person’s health
- The complainant does not need evidence that their health has actually been affected by the smoke-drift, it is good enough that there is a potential for negative health effects
This hazard-based approach allows a body corporate to enforce its by-laws and relevant legislation more efficiently, without requiring extensive evidence as required for establishing a nuisance.
If sufficient evidence of the smoking can be put forward that proves the smoking creates a hazard, a breach of section 167 can be made out.
Does this decision ban smoking?
No – the decision has no immediate effect beyond that specific Surfer’s Paradise case. The decision does however establish a precedent that a Queensland body corporate may follow when faced with similar smoking complaints.
It is important to note that it is not the smoking itself that is the issue– it is the smoke-drift to other lots which creates a hazard and can used as the reason to regulate the smoking. Bodies corporate still cannot ban smoking in a person’s lot simply because they disapprove of smoking.
If your body corporate is dealing with a smoking issue, instead of making a nuisance argument, the committee now has the option to progress a hazard argument, which is now likely to have a greater chance of success.
Smoking by-laws – What should bodies corporate do?
If your community is dealing with smoking hazard complaints by residents, the first step will be to assess whether your body corporate by-laws are adequate to control that issue, and to take advantage of this new adjudication ruling. Your Body Corporate Manager can assist you with reviewing your scheme’s smoking by-law and advice on how to modernise them.
to enforce section 167 of the BCCMA your body corporate does not need a by-law, however, best practice would be to implement a by-law that encompasses hazards as well as nuisances.
This would allow the body corporate to properly issue by-law contravention notices without the need to wait for an order of the adjudicator – a process which can take months or years.
If you need help with smoking issues at the scheme, please contact us.
How to address smoking in your body corporate?
Communication
As in any strata dispute, honest and friendly communication should be the first port of call.
Take the standard scenario of a neighbour smoking on their balcony. It is possible they may not be aware their cigarette smoke drifts from their balcony into your space.
The first step is to communicate. Explain to them the impact their cigarette smoke is having. See if an amicable agreement can be reached.
Smoking on Common Property
The body corporate is able to regulate activity on common property with appropriate by-laws.
Remember that a by-law can regulate but cannot prohibit an activity so any by-law completely prohibiting smoking on common property may be open to challenge.
Your body corporate may also want to erect signs and notices restricting smoking in common areas, or to designate other areas of common property where smoking may be permitted.
Remember that signage cannot replace a by-law and that any enforceable rules must be included in the registered by-laws.
By-laws that re-state the Tobacco and Other Smoking Products Act
A by-law can re-state the ban on smoking in common areas set out in the Tobacco and Other Smoking Products Act:
- A person must not smoke in enclosed common areas.
- A common area, for the purposes of this smoking ban, means an area accessible to all, or a specified class of, residents of, or persons employed at, the community titles scheme.
- An enclosed common area, for the purposes of this smoking ban, has a ceiling or roof and, except for doors and passageways, is completely or substantially enclosed, whether permanently or temporarily.
If the community titles scheme has children’s play equipment that could be regarded as ordinarily open to the public, a by-law can reinforce the relevant ban in the Tobacco and Other Smoking Products Act: “A person must not smoke within 10m of any part of children’s playground equipment”
Smoking nuisance by-law
A body corporate can pass a smoking nuisance by-law in terms that are consistent with the general nuisance provision of the Body Corporate and Community Management Act.
As stated previously, demonstrating the nuisance or unreasonable interference must be done objectively so what is not relevant is any subjective interference,
for example:
The occupier of a lot included in a community titles scheme must not smoke a tobacco product, or permit the smoking of a tobacco product, on the lot or the common property in a way that—
(a) causes a 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 or enjoyment of the common property by a person who is lawfully on the common property.
This will not ban smoking, but residents will understand that their smoking may cause a nuisance and to be more aware about how smoke-drift affects their neighbour and may be considered as an unreasonable interference.
Besides following the general nuisance provision of the Body Corporate and Community Management Act or re-stating the relevant sections of the Tobacco and Other Smoking Products Act, a by-law regulating smoking is unlikely to withstand challenge.
What about Vaping & E-Cigarettes?
Vaping pens and electronic cigarettes are smoking products and subject to the same laws in place for tobacco cigarettes and are treated the same in relation to strata schemes.
Tenants
Through their property manager, owners can specify that a tenant cannot smoke in their unit. Many management rights companies completely ban smoking in the units they manage.
However, this is not a body corporate issue. If a tenant does smoke, they will be breaching their rental agreement not one the body corporate’s by-laws.
What is reasonable?
The central principle of body corporate law is acting reasonably.
By-laws cannot be unreasonable, and owners and occupiers cannot interfere unreasonably with other owners and occupiers.
A Body Corporate cannot simply ban smoking in a scheme altogether and owners and occupiers cannot just smoke wherever they please.
It requires the finding of a middle ground of sensible smoking regulations that balance personal freedoms and community health interests.
