Smoking can be a contentious activity in apartment buildings, sometimes leading to disputes between residents about unpleasant odours and health hazards. A recent ‘game-changing’ decision of the body corporate adjudicator in Artique [2021] QBCCMCmr 596 found that second-hand smoke drifting into a neighbouring apartment was a health hazard and banned the respondent from smoking on her apartment balcony.
Facts of the case
The applicant in this case was an apartment owner in Artique Resorts in Gold Coast who complained that the respondent who lived in the floor below was a “chain smoker”. The applicant asserted the respondent smoked every 20 to 40 minutes and referred to this as being “relentless and unbearable” and she was concerned about its impact on her health. The applicant also claimed that this was in breach of the by-laws for the scheme and was a nuisance and hazard.
The applicant notified the body corporate of a by-law breach but the body corporate took the view that this was a matter between the owners. The respondent claimed that she has a right to smoke on her property and would continue to assert that right. The applicant sought orders that the respondent not smoke on her balcony and either smoke inside her apartment with all doors closed or in designated smoking areas in the scheme.
The question was whether the respondent’s conduct breached the by-laws or the Body Corporate and Community Management Act 1997 (Qld) (“Act”).
Nuisance, hazard and unreasonable interference
Section 167 of the Act prohibits the use of a lot or the common property in a community titles scheme in a way that causes a nuisance, hazard or unreasonable interference with the use or enjoyment of another lot or the common property. Relevantly in this case, a by-law for the scheme also mirrored this wording but applied specifically to smoking.
In Queensland, cases regarding smoking in community title lots, particularly on balconies, have focussed on whether the conduct constitutes a nuisance or an unreasonable interference to the use and enjoyment of another lot. In a number of cases, adjudicators have not been satisfied on the evidence presented that the conduct complained about was a nuisance or unreasonable interference to such extent that they could make orders to restrict that activity.
The adjudicator made reference to an earlier case of Norbury v Hogan [2010] QCATA 27, where the complainant had a particular sensitivity to cigarette smoke, but the Queensland Civil and Administrative Tribunal on appeal in that case was not satisfied that the complainant had provided sufficient evidence that the volume or frequency of smoke permeating his lot would unreasonably interfere with the use of the lot by a person of ordinary sensitivity, thus allowing the appeal.
In reaching her decision the adjudicator in this case had to determine whether smoking constituted a hazard, which has not been specifically tested in Queensland. She considered a number of New South Wales cases confirming that harm from second hand smoke is widely accepted as a hazard and also referred to a number of general publications on passive smoking by Queensland Health.
Although the evidence in this application is not extensive, the adjudicator was satisfied that the applicant is frequently exposed to cigarette smoke in her lot as the respondent regularly smoked on her lot, including the balcony of her lot. As such, the adjudicator concluded that the respondent’s smoking was a hazard in breach of the by-law and the Act and the respondent was banned from smoking on the balcony of her lot. The respondent was however, allowed to smoke in her apartment but must take reasonable steps to ensure that smoke drift does not affect neighbouring lots.
Key takeaway
This decision is important as it may allow body corporate communities to enforce a ban on smoking on balconies.
Our commercial property team is well versed in acting for members of community titles schemes and can provide advice to owners, occupiers and body corporates on their respective rights and obligations, including drafting and introducing of new by-laws which may be required to improve the management of schemes.
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