I think it’s fair to say this bill effectively gives a body corporate the right to end the days of smoking in a strata scheme.
The government always has a problem regulating what goes on behind closed doors. It’s your property – your domain – you do what you want with it.
The difficulty with smoking is that the residue of smoking is this nebulous thing that creeps in. If someone is smoking just inside the door, it doesn’t mean smoke will be contained behind it. Let’s look back to the Artique decision, where an adjudicator decided to limit smoking in relation to Section 167. Let’s skip over the nuisance and talk about it being a hazard. It’s funny how we all focused on nuisance over the years. In Norbury vs Hogan, it was basically held that for smoking to be a nuisance, it needs to be chain smoking. We all thought, “you can’t stop smoking”. Then an adjudicator said, “what about smoking as a hazard?” Yes, good call.
The words matter when you really sit down and spend time reading them. What they’ve done with smoking is two things. First, they’ve expanded the definition of nuisance to specifically include smoking. The words really matter here. This now extends to where someone ‘regularly’ uses a smoking product, and that’s a lot less than chain smoking. What proof will be needed? What is ‘regular’? Is it the start and end of every day? Those are going to be the fights. No matter what, there’s now a standard for nuisance in strata if this legislation is passed in the form that it’s presented, that is actionable by people, regardless of what the by-laws say.
There’s no penalty with any of this, by the way. While the government has moved to allow the effective prohibition of smoking in pretty much every circumstance, they haven’t attached a penalty to it, which is interesting. Surely, one begets the other, but not in this case, seemingly.
To clarify, we’re talking here about smoking in an open area. If someone is smoking and it is interfering with the use and enjoyment of your lot, then you may have something actionable with respect to the provisions of nuisance.
They’ve lowered the standard that was previously required there.
On top of that, they have given the ability for bodies corporates to prohibit smoking on the common property and outdoor areas of a lot that are common property or exclusive use. They still haven’t gone inside that front door, but they’ve gone outside that into what might be your property. That, in a sense, is as close as they’re going to get to interfering with people’s individual rights to engage in a lawful activity within their home because the balcony is probably going to be part of their home, but that activity affects other people.
By-laws, as a rule, can’t prohibit things. All they can do is regulate things. That’s why, from a pet perspective, a no pet by-law has always been invalid, but they’ve made pet by-laws black and white. What they’ve also done with this particular provision of the legislation is specifically say that the by-laws can prohibit smoking. That is new.
How does it get enforced? The same way as a by-law breach contravention gets enforced now. Either through the Magistrates Court or, far more commonly, through the Commissioner’s Office and that raises a big issue. If every person and their dog is now going to seek to enforce smoking by-laws, the Commissioner’s Office will find themselves inundated very quickly.
Importantly, a body corporate must still pass a by-law, or an individual can pursue a nuisance or hazard proceeding in relation to smoking, but the enforcement process has not changed. That is the same.
It is interesting to note that ‘smoke’ here is tied to a definition of a ‘tobacco product’. So, while that would capture cigarettes and vaping, it would not capture smoke from barbecues, word burners or smokers. In those cases, the existing provisions for nuisance and hazard would apply. That definition might be expanded later, but who knows at this stage.
It’s also retrospective, and it is very unusual for legislation to do this. Usually, there’s the line in the sand where here’s the date it commences. That’s when things kick off. What they’ve done is specifically include a section that says to the extent the body corporate has a no smoking by-law that complies with the new law, that’s going to be valid. It’s not valid today, but when this legislation commences, it will be valid.
That’s allowing the will of the people – as much as it might not be enforceable now, to be enforced when the legislation comes into existence that would give it that right.
If you’ve got a smoking issue, you will need to review the by-laws considering this. Indeed, one of the key messages arising from these proposed amendments is that a review of by-laws and their careful, consistent application thereafter will be vital in ensuring scheme harmony and protecting property values.
This post appears in the October 2023 edition of The QLD Strata Magazine.
Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898
Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500