FactSheet: Strata Smoking

• Are Apartment Blocks the New No Smoking Areas? Apr 2017 - Changes to smoking rules in parts of the country such as NSW and Queensland are setting the stage for ‘smoke
• Why you and your Owners’ Corporation should go Smoke-free Sep 2016 - Non-Smokers’ Movement of Australia Inc. is willing to assist and pay for the legal registration by ten Owners’ Corporations/ Strata

 Smoking should be banned from balconies in apartment buildings

LookUpStrata
Jun 2015: We recently carried out a poll to find out how our subscribers feel about strata smoking, particularly on balconies. Should it be banned?

Achieving smoke-free apartment living: An information kit for strata title accommodation owners, agents and tenants

Cancer Council NSW
The aims of this information kit are to:

• Increase awareness of the health, legal and financial benefits of 100% smoke-free housing
• Inform NSW strata title owners, agents and tenants about ways to address the problem of strata smoking and second-hand smoke in apartment blocks and other types of multi-unit housing such as townhouses, condominiums and villas
• Contribute to the increased availability of smoke-free housing options in NSW.

This kit includes information on ways to deal with strata smoking in your scheme, such as Examples of ‘smoke-free’ strata by-laws

Smoke Free Muilti-Unit Housing

Action on Smoking and Health (ASH)

A guide for owners, tenants, agents, authorities and Governments.

Sydney landlord ordered to pay $11,000 to tenant because of chain-smoking neighbour

Michael Evans, The Sydney Morning Herald
23 Nov 2015: A Sydney landlord has been ordered to pay more than $11,000 in compensation to a tenant whose flat was made unliveable by a chain-smoking elderly neighbour living in the flat below.

Note: This is a very interesting case! I had a discussion with Allison Benson, Kerin Benson Lawyers about this matter. With Allison’s permission, I have published the discussion below:

LookUpStrata: Hi Allison, just a question about this case. I noticed the body corporate ‘declined to intervene’ and told the owner to take action against the neighbour. What would have occurred if Lynette Laming was a lot owner, rather than a tenant? Can the Landlord now seek action to recover his loss?

Allison: Good question. I am running a case in the Supreme Court alleging nuisance (water penetration causing mould). It is clearer as the common property facade is the issue. Smoking could cause a nuisance. There is an argument that the OC may permit / adopt a nuisance by refusing to enforce by-laws or by failing to maintain the common property (if smoke could come through the CP into a lot).

It will come down to the facts of the each case but this is going to be an interesting area. The decision in the current nuisance case I am running will be a starting point as there is little case law that is strata specific.

The full notes of the case can be found here: Civil and Administrative Tribunal New South Wales – Bhandari v Laming [2015] NSWCATAP 224

Articles

• NSW: Smoking in Strata Buildings Mar 2018 - Smoking is one of the major sources of disputes in strata schemes. It can cause numerous problems for strata schemes,
• NSW: New Rules for Engaging Lawyers and Banning Smoking Building-Wide [PODCAST] Jul 2017 - Can we introduce a bylaw about banning smoking in the entire building, including inside lots? You may be surprised by
• NSW: What are the rules around smoking in strata buildings? Jun 2017 - The new NSW legislation introduced in November 2016 has recognised that smoking may cause nuisance or hazard to another person. How
• NSW: Why All Strata Buildings Should be Smoke Free – PODCAST Jan 2017 - People who live in apartment buildings are twice as likely to be exposed to second hand smoke as those who
• NSW Q&A: How Do I Stop Cigarette Butts Litter from Neighbours Upstairs? Sep 2016 - Question: How do I stop cigarette butts litter from being dropped onto my balcony from neighbours upstairs who overlook my
• NSW: Smoking, pets and compulsory review of by-laws Sep 2016 - The amendments to the regulation change the model bylaws proposed for a strata scheme building. All existing schemes are now
• NSW: Tobacco or a Snag… Anyone? Aug 2016 - Smoke Drift NSW: Come November 2016, throwing a snag on the barbie or having a puff on a ciggie could
• NSW Strata Reforms: Smoking in Strata Schemes – Nuisance (Part 2) Jul 2016 - Unfortunately, the opportunity to strengthen laws preventing smoke drift in strata schemes was not taken up with the NSW Strata
• NSW Strata Reforms: Smoking in Strata Schemes (Part 1) Jul 2016 - The proposed model by-laws will deal with smoking in strata schemes by owners, occupiers and invitees, which is a good

Pets, Parking and Smoking

Adrian Mueller, J. S. Mueller & Co Lawyers
Feb 2016: New strata by-laws allowing pets in units, managing illegal parking and curbing smoking on apartment balconies are part of the biggest overhaul of strata laws in more than 50 years.

Wake Up and Smell the Smoke – Prohibiting Smoking

Adrian Mueller, Senior Lawyer, J. S. Mueller & Co Lawyers
Dec 2015: The recent reform of NSW strata laws generated some media interest in smoking in strata buildings NSW. So can smoking be prohibited? Let’s find out.

Smoking and strata schemes: What is the effect of the recent amendments to the Smoke-free Environment Act 2000?

Allison Benson, Kerin Benson Lawyers
Sep 2015: When it comes to smoking in strata schemes NSW, the NSW Government’s amendments to the Smoke-free Environment Act 2000 (NSW) mean that smoking is now banned in mixed use strata schemes.

FAQs

• NSW: Q&A Smoke drift from tenant who regularly has a smoke on the balcony above Mar 2018 - Question: For the last few months, the tenant in the apartment above ours regularly sits and has a smoke on
• NSW: Q&A Our Building has No ‘Smoking Bylaws’ – so can residents smoke in the lifts? Nov 2017 - Question: I finally managed to get a copy of the by-laws for my building and there are no 'smoking bylaws'.

Q&A Are No Smoking Strata ByLaws Retrospective?

Allison Benson, Kerin Benson Lawyers
May 2016: Question: Can new no smoking strata bylaws be applied to long term residents? Will the new strata changes have any impact on these new bylaws?

Q&A Overcrowded Apartment Causing Smoke Drift and Noise

Allison Benson, Kerin Benson Lawyers
Jan 2016: We recently received a question about a NSW overcrowded apartment causing problems for a neighbouring lot owner. This issue involves strata smoking, smoke drift & noise.

Resources

STRATA SCHEMES MANAGEMENT REGULATION 2016 – SCHEDULE 3 – Model by-laws

– including those concerning smoking and smoke drift for residential strata schemes.

Cancer Council NSW

NSW Government’s proposed strata law reforms Submission from Cancer Council NSW

Cancer Council NSW commends the NSW Government for considering the problem of secondhand smoke in strata schemes as part of strata law reform in NSW.

Achieving Smoke Free Apartment Living

Including examples of ‘smoke-free’ strata by-laws.

Mixed Media

‘Big smoke’: Billie Bonevski study on smoking in multi-unit apartments

Billie Bonevski, Hunter Medical Research Institute (HMRI)
Jan 2014: A study by HMRI researcher A/Professor Billie Bonevski of second-hand smoke in apartment blocks has sparked Strata law reform in NSW.

eBooks

Neighbours and the law

– by Nadine Behan. Published by the Legal Information Access Centre (LIAC), State Library of New South Wales, 2012. An easy to understand guide to the different areas of law that are involved in neighbourhood issues and disputes. Covers areas that commonly cause problems between neighbours including: dividing fences, retaining walls, overhanging branches, animals and noise, including a section discussing:

• Noise, smells, smoke and garbage. Most types of pollution, whether industrial or domestic, can be experienced in a neighbourhood setting. The main legislation that deals with pollution in NSW is the Protection of the Environment Operations Act 1997, called the POEO Act. Administered by the Office of Environment and Heritage (OEH), the Act and its associated regulations create various offences and provide a range of remedies, depending on the type of pollution and the type of activity that is causing it.

Smoking in Strata

Hynes Legal
Apr 2016: In terms of FAQs in strata, smoking is one of the biggies. If you want to know the rules about strata smoking, particularly Queensland strata, read this.

What does the future hold for by-law enforcement?

Jason Carlson, Thynne + Macartney
Jan 2015: By-Law enforcement: Bodies corporate in Queensland may soon be given the power to tow vehicles, issue on-the-spot fines for by-law breaches and ban pets and strata smoking from their scheme. Will that be good for community living?

Give Unit Owners Rights to Self Regulate Balcony Smoking: More Time Needed to Consider Smoking Issues for Strata Properties

Strata Community Australia (QLD)
Strata Community Australia (QLD) has expressed concerns towards the State Government and the Opposition against any knee jerk reactions to calls over the last 24 hours for a ban on strata smoking on apartment balconies.

• VIC: Move Your Butt Jul 2017 - The absence of a specific Model Rule regarding smoking on common property or within lots creates uncertainty for both occupants

Is it illegal to smoke cigarettes in an Owners Corporation?

Stephen Raff, Ace Body Corporate Management
Apr 2016: Strata smoking – With smoking rates declining in Victoria and smokers increasingly being disallowed from lighting up in certain areas, how does this impact people smoking in Owners Corporations and what does the current Owners Corporation Act 2006 and Regulations 2007 say?

ACT: Q&A Bylaws to ban smoking in apartments

Jan Browne, Ian McNamee & Partners
Feb 2016: Question: Are there any bylaws for strata schemes in the ACT to ban strata smoking in apartments?

• SA: Q&A What Can I Do About Smoke Drift From Neighbour Smoking On Balcony Feb 2017 - Question: I am unable to have my door open or sit outside due to my neighbour smoking on their balcony.

• WA: Q&A Stop smoke drift from neighbour smoking on apartment balcony Nov 2017 - The new neighbours smoking on apartment balcony below us are causing smoke drift into our unit. We are unable to