This article discusses an NCAT smoking strata decision that expands how owners corporations can act against smoke drift, even when smoking occurs inside a lot.
VIDEO: A recent NCAT decision has significantly broadened the ability for owners corporations to take action against smokers who are causing a nuisance to other lot owners and occupants.
Warwick van Ede from JS Mueller & Co Lawyers joins Nikki Jovicic to provide some detail around a recent NCAT smoking and smoke drift decision that they are calling “Another Nail in the Coffin” for smokers in strata. Find out what the decision means for you and your strata building.
This case relates to a multi-storey residential building in Sydney’s CBD. Lot owners constantly experienced smoke drifting into their apartment from the neighbours smoking next door. The neighbours regularly smoked inside their lot and on their balcony. They thought this was fine because the building’s bylaws stated that you could not smoke on common property or allow smoke to penetrate common property, and they felt they were doing neither.
The owners corporation brought proceedings against the smokers on the basis that, even though they were smoking within their lot, these owners had breached a bylaw.
The tribunal found that the act of smoking into the air surrounding the building penetrated into the next door neighbour’s apartment was a breach of the bylaw. Even though the smokers were inside their lot when they smoked, the smoke had to travel through common property air space and a window to end up in the neighbour’s apartment.
Even if you use the standard bylaw, your building may be able to take action if smoke is penetrating into lots or common property. This decision has significantly broadened the ability for owners corporations to take action against smokers who are causing a nuisance to other lot owners and occupants.
We ask Warwick:
- Now that this decision has been made by NCAT, is smoking banned in strata?
- Have there been any legislative changes in relation to smoking in strata?
- If I’m a strata resident in NSW and I’m a smoker, am I able to smoke within my lot?
- Should NSW owners corporations be considering a new smoking bylaw?
- What are the next steps for smokers or residents affected by smokers in NSW apartment buildings?
You can read Warwick’s article here: Another “Nail in the Coffin” for Smoking in Strata.
If you have any questions about smoking, smoke drift, or changing your smoking bylaw, you can leave a comment or contact Warwick and the team at JS Mueller & Co:
This post appears in the February 2022 edition of The NSW Strata Magazine.
Warwick van Ede
JS Mueller & Co Lawyers
E. warwickvanede@muellers.com.au
P: 02 9562 1266
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