It is clear that enclosed public places within strata schemes are required to be smoke-free under the Smoke-free Environment Act 2000. An owners corporation is responsible for ensuring that common areas that are enclosed public places such as main entrances, thoroughfares and car parks are smoke free. What is not so clear is the law surrounding smoke drift issues arising from smoking in your own private residential unit.
In November 2006, the Consumer Trade and Tenancy Tribunal authorised an owners corporation to prevent tenants smoking in their strata unit where the smoke odour from their cigarettes entered other units and the common property after ruling that in the particular circumstances of the case, the smoke penetration constituted a "nuisance" to other occupiers under section 117 of the Strata Schemes Management Act 1996. The order also applied to the landlord.
The owners corporation and neighbouring occupiers’ submissions refer to the presence of both excessive cigarette smoke smells and chemical masking smells since the tenants commenced occupancy, and of the considerable action taken by the owners corporation to resolve the problem, including sealing the walls. The evidence also included a series of emails from neighbouring units complaining of cigarette smoke over a period of time. The submissions of the tenants and the landlord were to the effect that the activities of the tenant were not the cause of the smoke problems but rather the problem lied with the construction and design of the building.
The Strata Schemes Adjudicator, Graham Durie, considered the issue of causation, noted that the "but for" test was not the appropriate test to apply, and considered that the real cause of the nuisance was the smoking by the tenants.
"It may be that in the extreme, compliance with the orders will mean that the tenants cannot smoke in the lot they occupy; but that is a consequence of the nuisance and lack of enjoyment which the smoking creates" he said.
There has been no appeal against the decision sparking predictions of more decisions against smokers. A precedent for such a ruling had been set in the 1997 Supreme Court case of Salerno –v– Proprietors of Strata Plan 42724 when Justice Windeyer ruled that it was within the power of the owners corporation to ban smoking at home by both occupants and visitors.
Although by-laws cannot generally prohibit smoking in private residential units, this case highlights that owners and/or occupiers of strata units need to be aware that they may have other legal obligations in relation to smoking on their premises. For strata managers, this issue will no doubt become a heated topic, particularly in light of the views of the New South Wales Council for Civil Liberties.
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