This article discusses prove smoke drift nuisance, explaining whether expert evidence can help Queensland strata schemes meet the high legal threshold for establishing smoking-related nuisance.
Question: If we wished to mount a successful case of nuisance against a persistent smoker at our complex, would it be advisable to obtain expert evidence re the dangers of smoke drift.
Our By-Laws were recently updated for us by a strata lawyer, and they provide that an owner or occupier must not smoke, or permit a visitor to smoke, in their lot if it unreasonably interferes with the use or enjoyment of another person in a lot or common property.
We understand in Queensland, the Adjudicators have consistently refused to order an owner/occupier to ‘cease and desist’ smoking in their own lots, even on their balconies, because the complainants had failed to prove their case, ie unlawful nuisance.
If we wished to mount a successful case of nuisance against a persistent smoker at our complex, would it be advisable to obtain expert evidence re the dangers of smoke drift in general and in the particular circumstances of each case?
Answer: It is difficult to get a successful outcome from an adjudicator regarding smoking
Short answer? Yes.
Longer answer? As you’ve correctly noted, it is difficult to get a successful outcome from an adjudicator regarding smoking. This is essentially because the test for nuisance (as provided for in section 167 of the Body Corporate and Community Management Act 1997) has been established in the Courts and it is a high threshold. Without going into the gory details, it’s not enough to simply say ‘that person is smoking, they’re causing a nuisance’. Legal advice could assist the body corporate in make its necessary case against the smoker.
This post appears in Strata News #508.
Chris Irons
Strata Solve
E: chris@stratasolve.com.au
P: 0419 805 898
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