Smoking on Queensland apartment balconies could soon be a thing of the past after a recent adjudicator’s decision found that second-hand smoke drifting into a neighboring apartment constituted a health hazard.
The body corporate legislation prohibits occupants from using a private residential lot in a way that causes a nuisance or hazard, or interferes unreasonably with another person’s use or enjoyment of the lot or common property.
The previously high standard (which required nuisance to be proved) resulted in the majority of smoking complaints being unsuccessful. Decision makers held that smoking is not unlawful simply because a person finds it annoying or unpleasant.
A recent decision of the body corporate adjudicator has taken a different view of what constitutes a “hazard” by ruling in favour of a Gold Coast apartment dweller affected by secondhand smoke. The resident complained that their downstairs neighbour was a ‘chain smoker’ (smoking every 20 to 40 minutes) and the smoke being blown upwards into their apartment was a health hazard.
In the smoker’s defence, she claimed her disability prevented her from using the downstairs designated smoking area, adding that she “cannot help where the wind blows”.
The BCCM adjudicator commented that owners and occupants within a community titles scheme do not have unlimited rights. The smoker was ordered to no longer smoke tobacco products on the balcony however, added that smoking in their private apartment is allowed if reasonable steps are taken to ensure the smoke does not affect any person in another apartment.
Owners and Occupiers
The decision may allow body corporate communities to enforce a ban on smoking on balconies where it can be proven that the smoke is moving from one balcony to another and is therefore a health hazard.
Owners and occupiers unable to resolve the issue directly with their neighbour are encouraged to raise their concerns with their body corporate. If the body corporate is unable to resolve the issue, it is recommended that residents lodge a dispute application with the Office of the Commissioner for Body Corporate and Community Management.
The Dispute Resolution team at Shand Taylor Lawyers can assist apartment owners and occupiers to understand the powers of their body corporate and provide advice for those seeking to negotiate through the mediation processes.
The challenge for bodies corporate is striking a balance between occupancy rights and prevention of health hazards. By-laws cannot restrict the lawful use of a private residential lot. Since smoking is legal, it is not possible for a body corporate to prohibit or restrict smoking inside a private apartment.
Common property areas are open to regulation through a by-law and by-laws could ban smoking in common property areas on the basis that smoking can cause a nuisance or hazard, or interfere with another occupier in the scheme. Signage may also be useful to communicate where smoking is and is not permitted. However, to be enforceable, any smoking restrictions must be accompanied by enforceable rules included in the registered by-laws.
Legal advice may be required to draft a smoking by-law that is valid and enforceable. The Commercial Team at Shand Taylor Lawyers can provide drafting advice to your body corporate.
Matthew Shannon, Partner
(07) 3307 4506
Patrick Sherlock, Senior Associate
(07) 3307 4542