QLD: Understanding the new smoking laws in Queensland community titles schemes

This article is about smoking within Queensland’s community titles schemes.

What are the recent legislative reforms?

Recent legislative updates concerning smoking within Queensland’s community titles schemes represent a significant shift in the balance between individual freedoms and community well-being.

With the amendments to the Body Corporate and Community Management Act 1997 (BCCM Act), taking effect on 1 May 2024, bodies corporate now have enhanced powers to reasonably restrict or prohibit smoking in various areas.

These areas include anything from common property spaces to private outdoor areas.

By redefining the boundaries within which residents can indulge in their habit, the amendments bring clarity and authority to bodies corporate to enact their by-laws.

This authority comes with the responsibility to ensure these by-laws are neither oppressive nor unreasonable, as specified by the BCCM Act.

Crucially, it doesn’t encroach on the privacy of enclosed spaces within one’s own lot.

The changes enable bodies corporate to ‘reasonably’ restrict or prohibit the use of smoking products on all or part of:

• common property of the scheme
• body corporate assets
• outdoor exclusive use areas, and
• outdoor areas of lots (for example balconies, courtyards, patios, verandas).

Further, the BCCM Act now states that a prohibitive or restrictive by-law about smoking is not considered to be oppressive or unreasonable.

The success of this legislative change hinges on clear communication, effective enforcement of by-laws, and the cooperation of all parties involved.

Smokers must recognise and mitigate the impact of their smoke while non-smokers have clarity on their rights to a smoke-free environment.

All community members are encouraged to acquaint themselves with both the letter and spirit of these laws to foster harmonious living arrangements within their schemes.

By doing so, communities can strike a balance between respecting the health concerns of non-smokers and facilitating reasonable spaces for people who smoke.

Defining ‘smoking’

The BCCM Act adopts the same meaning given to the following terms as in the Tobacco and Other Smoking Products Act 1998 dictionary:

• inhale: to draw a vapour or gas into the individual’s lungs
• smoke: smoke, hold or otherwise have control over the smoking product when it is ignited; inhale through a hookah; or inhale through a vaping device
• smoking product: a tobacco product, herbal cigarette or loose smoking blend; or tobacco or another thing smoked in a hookah.

Smoking products can also include personal vaporisers (electronic or e-cigarettes, e-cigars, and vape pens) and personal vaporiser related products (e-liquids and e-cigarette parts), smoking-related products or packages or cartons of these items.

For the remainder of this article, the term “smoking” and “smoker” can be applied to the use of any of the above products and potentially other smoking products not mentioned.

If you are a smoker living in a community titles scheme

You must consider the impact of your smoking on other occupiers living in the community titles scheme. It is your responsibility to determine where you are allowed to smoke within your scheme.

Importantly, you are not permitted to smoke in a way that interferes with another lot owner or occupier’s enjoyment of their lot or the common property.

Further, your scheme’s by-laws may not permit you to smoke outside anywhere on scheme land, including outside on your lot, in your exclusive use area, or on common property.

However, you may consider smoking elsewhere within your lot, providing you take reasonable steps to ensure that smoke emanating from your lot does not affect any person lawfully using another lot or the common property.

An adjudicator has suggested you consider closing windows and doors within the lot to prevent smoke escaping (Artique [2021] QBCCMCmr 596 (21 December 2021).

Nevertheless, the design of your building might hinder your ability to confine smoke within your premises, particularly if internal air conditioning ductwork is involved.

Information for schemes with smoking by-laws

My scheme already had a smoking by-law prior to 1 May 2024. What do the new changes mean for us?

The legislation also states that by-laws in force before the amendments on 1 May 2024 are valid and enforceable, to the extent the by-law is consistent with the new legislative changes (section 169A).

This means that your scheme may already have a valid by-law in place that regulates, restricts, or prohibits smoking on common property, exclusive use areas, and/or outdoor areas of lots.

It is recommended you check and review your scheme’s current by-laws (found in your community management statement). If you don’t have a copy, you can contact Titles Queensland to obtain a current copy.

Enforcing smoking by-laws

Pursuant to section 94 of the BCCM Act, it is the body corporate’s obligation to enforce the by-laws, and it must act reasonably when doing so.

The body corporate is authorised to initiate enforcement of by-laws whenever there are reasonable grounds to suspect a contravention.

The general process for a body corporate to enforce by-laws includes:

1. issuing a contravention notice (form 10 or form 11) to the person in breach of a by-law
2. applying for conciliation and/or starting a proceeding in the Magistrates Court against the person if the breach is not resolved.

Should you be an occupier impacted by smoking within your scheme, you are empowered to take measures to uphold the by-laws. You might consider the following actions:

• speak or write to the smoker in question to discuss the scheme’s by-laws, highlight their responsibilities, and express the effect of their smoking on you. Collaborating from the outset to find a mutually agreeable solution can be beneficial
• issue a BCCM form 1 – Notice to body corporate of a contravention of a body corporate by-law. The body corporate is required to notify you within 14 days regarding their decision to issue a contravention notice to the individual in breach
• lodge a conciliation application with the BCCM office, against either the person in breach or the body corporate, if the issues are unresolved.

Please refer to our webpage about enforcing by-laws which outlines the steps required before lodging a dispute resolution application with the BCCM Office.

Information for schemes without smoking by-laws

I’ve checked, and my scheme does not have a smoking by-law. What can I do?

Your scheme may lack a specific by-law addressing smoking. In such cases, adjudicators have taken into account the applicability of section 167 of the BCCM Act.

This section provides that smoking could be a nuisance or a hazard when occupiers or their invitees regularly smoke on the lot or common property and to regularly expose another occupier or invitee to smoke or emissions from the smoking product.

A recent adjudicator’s order Georgina Views [2024] QBCCMCmr 357 provides a summary of this concept:

“The inhalation of second-hand smoke is a hazard. It is adjudged as such by public health legislation. The issue of whether smoking constitutes a hazard, contrary to section 167(a) of the Act, has also been specifically considered in Queensland in Artique [2021] QBCCMCmr 596 where an adjudicator held that smoke drift constituted an unreasonable interfering with the lawful use of other lots and that it constitutes a hazard. Section 167 of the Act prohibits the respondents from using their lot or common property in a way that causes a hazard. I have perused the building format plan for the scheme and note that the lots are directly next to each other. Further I am satisfied that smoking in the lot 3 exclusive use courtyard would cause smoke drift into lot 2 and the lot 2 courtyard.”

When your scheme does not have a smoking by-law, you can consider enforcing a contravention of the BCCM Act. This includes engaging in self-resolution or internal dispute resolution, before applying for a dispute resolution process through the BCCM office.

Self-resolution or internal resolution attempts might include:

• communicating, either verbally or in writing, directly with the smoker to address the impact that their smoking has on you and their duties under section 167 of the BCCM Act
• proposing a motion for the body corporate to enforce section 167 of the BCCM Act against the person smoking
• the body corporate using its own procedures to enforce section 167 of the BCCM Act, such as contacting the owner to clarify the nature of the breach
• lodging a dispute application with the BCCM office against either the smoker or the body corporate should the self-resolution efforts prove fruitless.

How can I make a new by-law to restrict or prohibit smoking in my scheme?

You may wish to submit a motion to a general meeting of the body corporate to change the by-laws to include a smoking by-law.

A body corporate can make changes to their by-laws at any time, by passing a special resolution motion at a general meeting. All lot owners will have the opportunity to vote on the change.

If you are proposing a motion, you may wish to consider these tips for wording your motion (see our webpage drafting motions):

• your proposed smoking by-law may restrict all or some types of smoking products, and all or some locations within the scheme
• your proposed smoking by-law cannot restrict smoking within the enclosed area of someone’s lot
• check to ensure your proposed smoking by-law is consistent with section 169A of the BCCM Act
• when writing your motion, be clear, concise, realistic, and action based. This will ensure voters understand exactly what you are proposing and what needs to be done if the motion passes
• you may include an explanatory note with your motion, of no more than 300 words (see also our webpage submitting motions).

For a special resolution, the motion will only pass if all the following three conditions are met:

• at least two-thirds (66%) of votes are in favour of the motion, and
• no more than one-quarter (25%) of votes are against the motion, and
• of the votes against the motion, the total contribution schedule lot entitlements of those lots is not more than one-quarter (25%) of the contribution schedule lot entitlements for all lots in the scheme.

If the motion passes, the body corporate must register the by-law by lodging a new community management statement with Titles Queensland within three months.

Further information

Smoking can significantly impact bodies corporate, committees, lot owners, and occupiers. For more detailed information about smoking in community titles schemes, please consult our factsheet.

Additionally, you are welcome to reach out to our Information and Community Education Unit by calling 1800 060 119 or through our online contact form at www.qld.gov.au/bodycorporatequestion. Further resources and guidance can be found on our website at www.qld.gov.au/bodycorporate.

Commissioner for Body Corporate and Community Management
P: Information Service Freecall 1800 060 119

This post appears in Strata News #758.

Have a question or something to add to the article? Leave a comment below.

Read next:

• QLD: Body Corporate and Community Management and Other Legislation Amendment Bill 2023 (the Bill) is set to take effect 1 May 2024
• QLD: Q&A Smoking and Smoke Drift in Strata
• QLD: Your secret weapon! How owner motions can shape your body corporate

This article has been republished with permission from the author and first appeared on the Queensland Government website.

Visit our Strata Smoking OR Strata Legislation QLD.

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