NSW: Smoke drift without a smoking by-law: Can it still be a nuisance?

This article discusses smoke drift nuisance in strata by explaining that smoke entering a lot can still be treated as a nuisance even without a specific smoking by-law.

Question: We do not have a smoking bylaw. A neighbour smokes on their balcony and the smoke drift enters my lot. Can I claim the smoker is creating a nuisance?

I am a non-smoker in an older apartment block without a no smoking by-law. My next-door neighbour leans on this as justification for smoking on their balcony daily. The smoke drift seeps into my house.

I have tried talking with them, letting them know their smoke is drifting into my house, to no avail. They says they are “trying” to help me out by only smoking on the far side of their balcony, but the smoke still ends up in my living space.

I have two children living here. The smoker doesn’t care that the children are breathing second-hand smoke almost on a daily basis.

I am on the executive committee and plan to table a request to adopt the model by-laws at our next AGM, but I have heard the smoker is planning to block the request.

Do I have hope under section 153: Owners, occupiers and other persons not to create nuisance?

Answer: You certainly have.

You certainly have. You need to keep very detailed records of any smoke drift events including the time, duration, where you could smell it and the measures you have taken to prevent smoke drift from entering your lot.

You can read more here: NSW: Smoking in Strata Schemes – Continued Good News for Non-Smokers

This post appears in Strata News #631.

Allison Benson
Kerin Benson Lawyers
E: allison@kerinbensonlawyers.com.au
P: 02 4032 7990