How to solve smoking disputes in strata

Australia has some of the world’s toughest anti-smoking laws, and while it’s now banned in enclosed public areas and certain outdoor public areas, some would argue that smokers have the right to do what they want in their own homes

When people live in apartment buildings, however, smoke drift and second-hand smoke can affect other residents, particularly during weekends or the holiday season when people are more inclined to have guests around and be at home more often. This often results in smoking disputes in strata.

Australia has some of the world’s toughest anti-smoking laws, and while it’s now banned in enclosed public areas and certain outdoor public areas, some would argue that smokers have the right to do what they want in their own homes.

When people live in apartment buildings, however, smoke drift and second-hand smoke can affect other residents, particularly during weekends or the holiday season when people are more inclined to have guests around and be at home more often.

If you’re a smoker or have a neighbour who smokes in your apartment complex, here’s what your rights and options are per state:

In New South Wales

Smoking has been acknowledged as a potential nuisance or hazard to occupants in NSW. Residents may be able to enforce restrictions through by-laws, which should define smoking-related rules so that everyone can enjoy their property in the best possible way. If your by-laws are unclear or unhelpful, there’s the option of adopting option A or B of Model By-law 9 (smoke penetration). This can be formalised in the annual general meeting with a special resolution vote.

The model by-laws on smoke penetration reads as follows:Option A:

1. An owner or occupier, and any invitee of the owner or occupier, must not smoke tobacco or any other substance on the common property.
2. An owner or occupier of a lot must ensure that smoke caused by the smoking of tobacco or any other substance by the owner or occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot.

Option B:

1. An owner or occupier of a lot, and any invitee of the owner or occupier, must not smoke tobacco or any other substance on the common property, except:
   a) in an area designated as a smoking area by the owners corporation, or
   b) with the written approval of the owners corporation
2. A person who is permitted under this by-law to smoke tobacco or any other substance on common property must ensure that the smoke does not penetrate to any other lot
3. An owner or occupier of a lot must ensure that smoke caused by the smoking of tobacco or any other substance by the owner or occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot.

In the event of smoking disputes in your strata, residents should attempt to resolve matters by having a reasonable and polite discussion with all parties involved. Some occupants may not be aware smoke is drifting to their neighbour’s lot. If discussions fail and by-laws continue to be breached, there’s the option of taking the matter to the NSW Civil and Administrative Tribunal.

In Queensland

In Queensland, under section 167 of the Body Corporate and Community Management Act 1997 (BCCMA) it may be possible to restrict smoking on common property through a by-law if it can be demonstrated objectively that the smoke causes a nuisance or hazard or interferes with the use or enjoyment of another lot included in the scheme or common property. Demonstrating the nuisance or unreasonable interference must be done objectively to substantiate a contravention of section 167 of the BCCMA. What is not relevant is any subjective interference, but whether, objectively, the person causes a nuisance or hazard.

In Victoria

Currently, Victorian strata laws only allow owners corporations to make rules that ban smoking on common property, so it might be difficult to enforce any rules that deals with smoke drift from individual apartments.

It could be argued however that smoke drift is a health hazard and under the Owners Corporation Regulations 2018, Schedule 2 Model Rule 1.1, and owner must not use the lot or permit it to be used, so as to cause a hazard to the health, safety and security of an owner, occupier, or user of another lot.

If you’d like to find out more on managing smoking disputes in strata and smoke that is drifting onto your lot or common property, download your free Community Living guide on managing disputes. Or for a consultation to review your by-laws by our Kemps Petersons Legal team, click here.