This article discusses a NSW NCAT decision where tobacco smoke drift from a strata lot’s courtyard was deemed a nuisance under the Strata Schemes Management Act and explores how such cases might differ with medically prescribed substances.
In Shaw v Euen [2023] NSWCATCD 68, the New South Wales Civil and Administrative Tribunal (NCAT) determined a dispute between two strata lot owners regarding tobacco smoke intrusion. Despite a by-law regulating smoking within the scheme, Mr Shaw, sought an order to prevent the respondents, the lot owner and the occupant, from permitting tobacco smoking in the courtyard of their lot. This was framed in the basis of the smoke drift causing a nuisance under s153 of the Strata Schemes Management Act 2015 (“SSMA”)
Mr Shaw’s lot was directly above the respondents’ lot. The respondent’s lot was on the ground floor and had a “substantial” walled and paved courtyard. The courtyard was partially enclosed or sheltered by the building immediately above but was otherwise open to the elements. Mr Shaw’s lot had a partially enclosed western facing balcony and western facing bedroom windows. One of the respondents (who was heavy smoker) regularly smoked in one area of their courtyard which was between 3 – 6 metres away from Mr Shaw’s lot. Mr Shaw gave evidence that he suffered from asthma and provided meteorological evidence that the wind was predominantly westerly which exacerbated the smoke drift into his lot. Mr Shaw also gave evidence that he had needed to move from his lot and to lease it out.
The NCAT adopted the reasoning in Pittman v Newport [2022] NSWCATCD 173 (see my early blog in this topic) and found that the smoke drift from the respondents’ courtyard constituted a nuisance under section 153 of the Act, as it unreasonably interfered with Mr Shaw’s use and enjoyment of his lot.
In making this decision the NCAT stated “The law permits a person to use their land in a manner that interferes with the use by a neighbour of their land, provided this interference is not unreasonable.” (para 54) and noted that the use was in a strata scheme in the context where a by-law had been registered to restrict smoking. While the NCAT found there was:
“a degree of reciprocity (give and take) required of occupiers of land in a communal living environment of this type. An owner of land of this type cannot reasonably expect to be unaffected by their neighbour’s use of their own land.” (at para 55)
However, while it was acknowledged that there needed to some give and take in strata schemes it was relevant that:
- there is no safe level of exposure to tobacco smoke;
- there was a by-law regulating smoking in the scheme and prohibiting smoke drift and it was hardly reasonable conduct to contravene a by-law); and
- the smoke drift caused by the respondent smoking was frequent
In finding that it was a significant and unreasonable interference with Mr Shaw’s use and enjoyment of his lot and constituted a hazard under s153 of the SSMA.
Consequently, NCAT issued an order prohibiting the respondents from permitting tobacco smoking in the courtyard of their lot.
In answer to my question whether you need a by-law, the answer is no, you could rely on s153 of the SSMA but clearly having a by-law prohibiting smoke drift is helpful in establishing a nuisance claim.
Now, consider if the smoke drift was caused by something other than tobacco. Say it was caused by medically prescribed marijuana or a medically prescribed vape or e-cigarette. Would that change the NCAT’s decision? Potentially. It will come down to the facts of the case.
Three factors were relevant in the Shaw decision: the lack of safe exposure levels to tobacco smoke, the frequency of the smoking and the by-law prohibiting smoke drift. The immediate differences with smoking medically prescribed drugs or other substances would be that depending on what the drug was mixed with (for instance, was it mixed and smoked with tobacco or another substance?) or in the case of the vape or e-cigarette the composition of the substance used concerns over the lack of safe exposure levels may not apply as tobacco may not be being used. Also, the frequency of the smoke drift caused by medicinal smoking may be less. A by-law (as in the Shaw case) prohibiting smoke drift caused by smoking “any substance” would also apply to medically prescribed drugs and smoking vapes and e-cigarettes but it does not actually prohibit smoking within a lot, only smoke drift. Further complicating factors are that it be argued the smoking is a medical necessity and that preventing it would adversely affect the smoker’s health and well being. Alternatively, it may also be possible to argue that the person could take the substance some other way that would not affect other lot owners. This is where the balancing act (the degree of reciprocity) will apply.
Allison Benson
Kerin Benson Lawyers
E: [email protected]
P: 02 4032 7990
This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.
This post appears in Strata News #749.
This article has been republished with permission from the author and first appeared on the Thoughts from a Strata Lawyer… website.
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