NSW: Q&A What are the rules around smoke and smoking in strata buildings?

This Q&A answers questions from our audience about the controversial topic of smoking in NSW strata buildings.

Table of Contents:

• 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.
• QUESTION: My new neighbours in the unit above uses incense in their unit every day. The smell fills up my unit and in the public passageway. What legal rights do I have? Is it all right to get the police involved?
• QUESTION: We have a by-law stating residents are permitted to smoke on common property. This came about as one lot owner wanted the by-law and no-one challenged him at the time. I am strongly against the by-law and want to know how I can get this smoking bylaw changed.
• QUESTION: Our smoking bylaw states ‘No smoking in all common areas AND No Smoking inside your own apartment’. Is this bylaw legal in NSW and if not can it be removed?
• QUESTION: How do we handle the other duplex lot owners who smoke outside their lot. Smoke drifts over the dividing fence and into my ageing father’s lot.
• QUESTION: For the last few months, the tenant in the apartment above ours regularly sits and has a smoke on the balcony. Their smoking causes smoke drift into our flat each time they smoke on the balcony. What can we do?
• QUESTION: I finally managed to get a copy of the by-laws for my building and we don’t have a ‘smoking bylaw’. Does this mean people are free to smoke throughout the building?

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:

Warwick van Ede
JS Mueller & Co Lawyers
E. [email protected]
P: 02 9562 1266

This post appears in the February 2022 edition of The NSW Strata Magazine.

Question: My new neighbours in the unit above uses incense in their unit every day. The smell fills up my unit and in the public passageway. What legal rights do I have? Is it all right to get the police involved?

Answer: BBQ smoke, cigarette smoke and possibly incense smoke drift could potentially be construed a as nuisance.

The nuisance provisions of the Strata Schemes Management Act, 2015 (NSW) could potentially apply to your situation. BBQ smoke, cigarette smoke and possibly incense smoke drift could potentially be construed a as nuisance.

Section 153:

1. An owner, mortgagee or covenant charge in possession, tenant or occupier of a lot in a strata scheme must not:

   1. use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
   2. use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or
   3. use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.

Depending on the circumstances in which it occurs, the penetration of smoke from smoking into a lot or common property may cause a nuisance or hazard and may interfere unreasonably with the use or enjoyment of the common property or another lot.

2. This section does not operate to prevent the due exercise of rights conferred on a developer by the operation of section 82 of the Strata Schemes Development Act 2015.

Division 1 of Part 6 contains provisions about the circumstances in which owners of lots may carry out work that affects common property.

We recommend approaching your neighbour in a friendly manner first. If the “nuisance” continues you could apply for Mediation through NSW Fair Trading.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #522.

Question: We have a by-law stating residents are permitted to smoke on common property. This came about as one lot owner wanted the by-law and no-one challenged him at the time. I am strongly against the by-law and want to know how I can get this smoking bylaw changed.

Answer: The by-law may be invalid or of no force or effect to the extent that it conflicts with other smoking law.

A by-law cannot overrule the provisions about smoking not causing a nuisance under section 153 of the Strata Schemes Management Act 2015 and those rights are enforceable in NCAT. The by-law may also be invalid or of no force or effect to the extent it conflicts with other smoking law referred to below.

Please see some helpful links:

• NSW: Last Gasp For Smokers in Strata
• Strata Schemes Management Act 2015 No 50 – 153 Owners, occupiers and other persons not to create nuisance

Feel free to email me directly at [email protected] if you want to engage us and get some advice to assist you with your by-law problem.

David Bannerman
Bannermans Lawyers
E: [email protected]
P: 02 9929 0226

This post appears in Strata News #376.

Question: Our smoking bylaw states ‘No smoking in all common areas AND No Smoking inside your own apartment’. Is this bylaw legal in NSW and if not can it be removed?

We live in a high rise apt block and a few years ago we voted against a no smoking building, but we are not allowed to smoke in all common areas.

Our building has a reasonably large amount of tenanted apartments. Most residents are unaware of the Bylaw stating ‘No smoking in all common areas AND No Smoking inside your own apartment’.

The bylaw clearly states that Owners, tenants, or friends are not allowed to smoke inside your own apartment under any circumstances.

Is this bylaw legal in NSW and if not can it be removed?

Answer: The by-law could be construed as “harsh” or “oppressive”.

The smoking provisions of the strata legislation relate to the “nuisance” that is caused by smoke drift and the new Schedule 3 by-laws restrict smoke penetration to lot and common property.

We have not seen a blanket prohibition on smoking anywhere on lot or common property challenged or upheld. The by-law could be construed as “harsh” or “oppressive” and invalidated on that basis ie that it is harsh that smoking is prohibited within a lot provided that smoke does not escape.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #376.

Question: How do we handle the other duplex lot owners who smoke outside their lot. Smoke drifts over the dividing fence and into my ageing father’s lot.

We are looking for information about how to handle the other lot owners who smoke in the back yard of their duplex. The smoke drifts over the dividing fence into my ageing father’s lot. The neighbours smoke in an area that is roughly 3m away from his back door and bedroom. This is particularly an issue as he is on the dust disease register.

We have tried NCAT but the matter was rejected in the Administrative Tribunal.

Answer: Smoking could be construed as a trespass, a private nuisance and constitute a violation of your father’s right to quiet enjoyment of his property.

On the assumption you do not wish to further pursue your rights through NCAT, depending on the strength of your evidence, smoking could be construed as a trespass, a private nuisance and constitute a violation of your father’s right to quiet enjoyment of his property.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #353.

Question: For the last few months, the tenant in the apartment above ours regularly sits and has a smoke on the balcony. Their smoking causes smoke drift into our flat each time they smoke on the balcony. What can we do?

I have been the tenant in my building for the past 9 years.

For the last few months, the tenant in the apartment above ours regularly sits and smokes on the balcony.

Their smoking causes smoke drift into our flat each time they smoke on the balcony. We know it’s them because we hear their sliding door and can see their reflection in the windows of the opposite building.

During the day and evening, we like to have our balcony door and bedroom windows open to allow fresh air to circulate and find that we are needing to close these every time the tenant has a smoke on the balcony (which can be in the 10’s during the weekend days). Are residents in NSW apartment buildings allowed to smoke on their balcony?

I am also an asthmatic whose asthma is triggered by smoke and therefore find this to be a wider health issue and nuisance and would like to know what we can do.

Answer: We do not know whether your building has the smoke drift by-law, we confirm that the legislation virtually regulates same.

While we do not know whether your building has the smoke drift by-law, we confirm that the legislation virtually regulates same – see highlighted section below:

153 Owners, occupiers and other persons not to create nuisance

1. An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not:
   
   • use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
   • use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or
   • use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.
     Note: Depending on the circumstances in which it occurs, the penetration of smoke from smoking into a lot or common property may cause a nuisance or hazard and may interfere unreasonably with the use or enjoyment of the common property or another lot.
2. This section does not operate to prevent the due exercise of rights conferred on a developer by the operation of section 82 of the Strata Schemes Development Act 2015.

Division 1 of Part 6 contains provisions about the circumstances in which owners of lots may carry out work that affects common property.

Seeking orders from NCAT

You may wish to seek orders from NCAT to prohibit the smokers from smoking (mediation must first be attempted), or you might wish to request that the Owners Corporation pass a non-smoking or smoke-drift by-law.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #182.

Question: I finally managed to get a copy of the by-laws for my building and we don’t have ‘smoking bylaws’. Does this mean people are free to smoke throughout the building?

I live in an apartment block in Sydney, NSW. The block is new and I was one of the first to move in three months ago. As more of the apartments have become inhabited, people have started smoking in the common areas. This includes the ground floor foyer, corridors on the upper floors and even in the lift. Is this allowed under strata laws?

I have read the information on the model by-laws, which as I understand are guidelines and not legislation, so owners corporations can set their own by-laws. I finally managed to get a copy of the by-laws for my building and there aren’t any ‘smoking bylaws’ – nothing in there regarding smoking. Does this lack of smoking bylaws mean people are free to smoke throughout the building?

And if so, what can we do to make our building a smoke free apartment building?

Answer: A model bylaw regarding nuisance would either have to be adopted at registration if a new scheme or by the owners corporation at a later time.

Sounds like a horrible situation if people are smoking not just outdoors and in their lots but in areas such as the lift.

I note that:

There’s a model smoking bylaw regarding nuisance smoking – see below – this would either have to be adopted at registration if a new scheme or by the owners corporation at a later time.

The cancer council has great resources on smoking and useful smoking bylaws within apartments blocks – Achieving Smoke Free Apartment Living

Even without a specific by-law, smoking in such a way as described will generally fall under the definition of ‘nuisance’ and give rise for an occupant to take action under this section against the owners/owners corporation – SECT 153 Owners, occupiers and other persons not to create nuisance

9 SMOKE PENETRATION

Note: Select option A or B. If no option is selected, option A will apply.

OPTION A

1. An owner or occupier, and any invitee of the owner or occupier, must not smoke tobacco or any other substance on the common property.
2. An owner or occupier of a lot must ensure that smoke caused by the smoking of tobacco or any other substance by the owner or occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot.

OPTION B

1. An owner or occupier of a lot, and any invitee of the owner or occupier, must not smoke tobacco or any other substance on the common property, except:
   
   1. in an area designated as a smoking area by the owners corporation, or
   2. with the written approval of the owners corporation.
2. A person who is permitted under this by-law to smoke tobacco or any other substance on common property must ensure that the smoke does not penetrate to any other lot.
3. An owner or occupier of a lot must ensure that smoke caused by the smoking of tobacco or any other substance by the owner or occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot.

Andrew Terrell
Bright & Duggan
E: [email protected]
P:02 9902 7100

This post appears in Strata News #167.

We know this is quite an issue in strata. Have a question or something to add about smoking in strata buildings, please leave a comment below.

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Read next:

• NSW Strata Reforms: Enforcing By-laws by Issuing Notices to Comply
• NSW Q&A: How Do I Stop Cigarette Butts Litter from Neighbours Upstairs?
• NSW: Is Smoking a Nuisance?
• Cancer Council NSW: Landlord ordered to compensate tenant because of smoking neighbour – May 2021

This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

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