This article discussing the controversial topic of smoking in strata buildings has been provided by Leanne Habib, Premium Strata.
New NSW strata laws recognises smoking may cause nuisance or hazard to another person
The new legislation introduced in NSW in November 2016 has recognised that smoking may cause nuisance or hazard to another person. Further, it has introduced a new model by-law (which must be adopted) regulating smoke drift.
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It offers two options to restrict smoke penetration in by-laws. If neither option A or B 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: (a) in an area designated as a smoking area by the owners corporation, or (b) 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.
So, for example, if Option A were adopted, smoking would be permitted within an individual’s apartment provided that no smoke escaped into another apartment or into common areas.
Even if the Owners Corporation does not have a by-law which prohibits smoking or smoke penetration, the Owners Corporation could stop a person from smoking under the nuisance/hazard provisions of the legislation if the Owners Corporation could prove such nuisance/hazard being caused.
Breach of a by-law and penalties
In NSW, residents in breach of any by-law risk that the Owners Corporation makes an application to NCAT for the imposition of a civil penalty for breaching the by-law. Such penalties are quite severe. This penalty carries a monetary penalty of up to 10 penalty units (which is $1,100). A repeat offender (ie one who was fined $1,100 and breached the by-law again within 12 months of being fined) can be fined $2,200.
Any owner who is in breach of the occupancy limits set out in the legislation is potentially liable to fines of $5,500 and $11,000.
In the event that an owner breaches a NCAT Order to, for example, stop smoke drift, or remove an animal, Section 72 (3) of the Civil and Administrative Tribunal Act 2013 provides for a civil penalty. These penalties have increased to up to $11,000 for an individual and $22,000 for a corporation.
Smoking in Strata Buildings: Restrictions on by-laws
The new strata legislation has enacted a new restriction on by-laws, namely, that a by-law cannot be unjust, harsh, unconscionable or oppressive. Whether or not a by-law falls afoul of these restrictions is determined by NCAT. Further, any such by-law may be invalidated by NCAT.
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We hope you found this article useful. This article is not intended to be exhaustive and we recommend you speak with your strata manager in the first instance.
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?
Leanne Habib
Premium Strata Pty Ltd
P: 02 9281 6440
E: info@premiumstrata.com.au
This article has been republished with permission from the author and first appeared on the Premium Strata website.
This post appears in Strata News #146
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Good afternoon, I’m in Queensland and I’m waiting for rhe day that cigarette smoking is banned in residential buildings. The elderly woman in the apartment below me smokes and all the units cop the smoke. It’s like a chimney effect and nobody likes it. It affects my health, too. When will something be done in every state to stop this situation?
I’ve written to Body Corporate and was advised to close my doors and put aircon on, that smokers have the right to smoke on their balconies and that I could move out.
Hello Leanne,
The Executive Committee of my strata has decided to delete the by-law regarding parking. This will cause chaos with some residents not being able to access their garages and others parking on the common property causing a third group to have to do several three point turns to both enter and exit their spots.
In your opinion is the omission of a parking by-law the same as an unjust by-law?
Restrictions on by-laws
The new strata legislation has enacted a new restriction on by-laws, namely, that a by-law cannot be unjust, harsh, unconscionable or oppressive.
I look forward to hearing from you.
Regards,
Jo Daly
Hi Jo
Thanks for your question. We have received this response back from Leanne Habib, Premium Strata:
In our view, the absence of such a by-law is not “unjust” perhaps just unwise. There is no positive requirement for an owners corporation to have a parking by-law in place, however, it sounds as though this will cause chaos in your building. Further, it also sounds unlikely that the Owners Corporation will avail itself of its powers under the regulations to have obstructing vehicles removed.
You will likely need strata specialist legal assistance with this matter as there appear to be 2 courses of action open to you – apply to NCAT to have the by-law revived or apply to NCAT for a compulsorily appointed agent (if you meet with threshold that the scheme is dysfunctional)(the latter course is a high threshold).
In addition to the above, the offending vehicles parked on the common property may be in breach of the nuisance and hazard provisions of the strata legislation. Under such legislation no owner or occupier may 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.