Question: Can a body corporate introduce a by-law restricting incense burning that affects other lots and common property?
Can body corporates in Queensland have a by-law restricting incense burning when the strong smell enters other units and fills the common property hallway? Incense is known to be a health risk to others.
Answer: Depending on the nature and layout of lots, a by-law that prohibits the burning of incense products on outdoor areas of lots or exclusive use areas may certainly be valid and enforceable.
Yes, a by-law can restrict the burning of incense where it causes a nuisance or hazard.
Even without a by-law, where a nuisance or hazard is created, regard could also be had to section 167 of the Body Corporate and Community Management Act 1997, which provides that an occupier of a lot must not use, or permit the use of, their lot in such a way that causes a nuisance or hazard, or unreasonably interferes with the use or enjoyment of another lot or the common property.
The legislative amendments introduced on 1 May 2024 included specific provisions dealing with the use of smoking products on lots and the common property. It confirmed that a by-law may prohibit the use of smoking products in all areas of common property and outdoor areas of lots, as well as exclusive use areas (e.g., balconies, courtyards and patios). However, the provisions only deal with smoking products which are inhaled, not the smoke which would be generated from incense or barbeques and the like.
That said, depending on the nature and layout of lots within the scheme, a by-law that prohibits the burning of incense products on outdoor areas of lots or exclusive use areas may certainly be valid and enforceable in much the same way as the restrictions on inhaled smoking products.
Whilst it is likely a by-law cannot restrict the use of incense products within the internal areas of lots, if such use creates a nuisance or hazard, then there is no reason why the provisions of a by-law and/or section 167 of the Act could not be relied upon to bring the nuisance or hazard to an end.
This post appears in the October 2025 edition of The QLD Strata Magazine.
Jarad Maher Grace Lawyers E: jarad.maher@gracelawyers.com.au