This Q&A answers questions from our audience about the controversial topic of smoking in NSW strata buildings.
Table of Contents:
- QUESTION: How important were detailed records in the success of a recent tribunal hearing? How much effort was it to keep the records?
- QUESTION: We do not have a smoking bylaw. A neighbour smokes on their balcony and the smoke drift enters my lot. Can I claim the smoker is creating a nuisance?
- VIDEO: A recent NCAT decision has significantly broadened the ability for owners corporations to take action against smokers who are causing a nuisance to other lot owners and occupants.
- QUESTION: My new neighbours in the unit above uses incense in their unit every day. The smell fills up my unit and in the public passageway. What legal rights do I have? Is it all right to get the police involved?
- QUESTION: We have a by-law stating residents are permitted to smoke on common property. This came about as one lot owner wanted the by-law and no-one challenged him at the time. I am strongly against the by-law and want to know how I can get this smoking bylaw changed.
- QUESTION: Our smoking bylaw states ‘No smoking in all common areas AND No Smoking inside your own apartment’. Is this bylaw legal in NSW and if not can it be removed?
- QUESTION: How do we handle the other duplex lot owners who smoke outside their lot. Smoke drifts over the dividing fence and into my ageing father’s lot.
Question: How important were detailed records in the success of a recent tribunal hearing? How much effort was it to keep the records?
During Brenton Pittman’s tribunal hearing to stop smoke drift from entering his apartment, the tribunal member described his record keeping as meticulous evidence and compelling. How much effort was it to keep the records? How did Brenton know to keep such detailed records and how much weight does he feel it had on the outcome of the decision? Could this style of record keeping be used for any nuisance case?
Answer: For any nuisance case, detailed record keeping would assist in building the case and make it easier if the matter proceeds to a tribunal hearing.
My previous business dealings involved keeping records that may be used in court for my company. We thought we should be noting a date, a time, what was said, the direction of the wind..etc
The direction of the wind was quite important because one of the excuses was the high level of wind in this area blows the smoke well away from the building quite quickly. We’re on the leeward, North side of the building and more than 60 per cent of the wind blows from the South. Our records showed it’s quite possible we would be the only people experiencing smoke drift.
Our records noted if one or both of us smelt cigarette smoke. We recorded the time of the day, what part of the unit we were in and any other activity that may have been happening eg if we could hear a dog barking or the scraping of chairs.
More importantly, we recorded what the smoke drift was doing to us. Was it distracting us, giving us a bad smell or taste in our mouth, or irritated eyes, sore throat, or lack of concentration?
Over 200 days of recording this, we had 800 events. We collated all of this information into a spreadsheet for the court. Six or eight of the incidents were disputed. When you’ve got one per cent of the evidence disputed, you would imagine a tribunal member will consider the evidence pretty accurate.
Ultimately, I feel that although this evidence wasn’t constantly brought up in the matter, the tribunal member made two or three comments that it was probably the best record keeping he had seen for any of his cigarette smoke cases. I believe it was highly important to the final outcome.
For any nuisance case, detailed record keeping would assist in building the case and make it easier if the matter proceeds to a tribunal hearing.
Brenton Pittman, Applicant in the Pittman v Newport [2022] NSWCATCD 173 case
This post appears in the June 2023 edition of The NSW Strata Magazine.
Question: We do not have a smoking bylaw. A neighbour smokes on their balcony and the smoke drift enters my lot. Can I claim the smoker is creating a nuisance?
I am a non-smoker in an older apartment block without a no smoking by-law. My next-door neighbour leans on this as justification for smoking on their balcony daily. The smoke drift seeps into my house.
I have tried talking with them, letting them know their smoke is drifting into my house, to no avail. They says they are “trying” to help me out by only smoking on the far side of their balcony, but the smoke still ends up in my living space.
I have two children living here. The smoker doesn’t care that the children are breathing second-hand smoke almost on a daily basis.
I am on the executive committee and plan to table a request to adopt the model by-laws at our next AGM, but I have heard the smoker is planning to block the request.
Do I have hope under section 153: Owners, occupiers and other persons not to create nuisance?
Answer: You certainly have.
You certainly have. You need to keep very detailed records of any smoke drift events including the time, duration, where you could smell it and the measures you have taken to prevent smoke drift from entering your lot.
You can read more here: NSW: Smoking in Strata Schemes – Continued Good News for Non-Smokers
Allison Benson
Kerin Benson Lawyers
E: allison@kerinbensonlawyers.com.au
P: 02 4032 7990
This post appears in Strata News #631.
VIDEO: A recent NCAT decision has significantly broadened the ability for owners corporations to take action against smokers who are causing a nuisance to other lot owners and occupants.
Warwick van Ede from JS Mueller & Co Lawyers joins Nikki Jovicic to provide some detail around a recent NCAT smoking and smoke drift decision that they are calling “Another Nail in the Coffin” for smokers in strata. Find out what the decision means for you and your strata building.
This case relates to a multi-storey residential building in Sydney’s CBD. Lot owners constantly experienced smoke drifting into their apartment from the neighbours smoking next door. The neighbours regularly smoked inside their lot and on their balcony. They thought this was fine because the building’s bylaws stated that you could not smoke on common property or allow smoke to penetrate common property, and they felt they were doing neither.
The owners corporation brought proceedings against the smokers on the basis that, even though they were smoking within their lot, these owners had breached a bylaw.
The tribunal found that the act of smoking into the air surrounding the building penetrated into the next door neighbour’s apartment was a breach of the bylaw. Even though the smokers were inside their lot when they smoked, the smoke had to travel through common property air space and a window to end up in the neighbour’s apartment.
Even if you use the standard bylaw, your building may be able to take action if smoke is penetrating into lots or common property. This decision has significantly broadened the ability for owners corporations to take action against smokers who are causing a nuisance to other lot owners and occupants.
We ask Warwick:
- Now that this decision has been made by NCAT, is smoking banned in strata?
- Have there been any legislative changes in relation to smoking in strata?
- If I’m a strata resident in NSW and I’m a smoker, am I able to smoke within my lot?
- Should NSW owners corporations be considering a new smoking bylaw?
- What are the next steps for smokers or residents affected by smokers in NSW apartment buildings?
You can read Warwick’s article here: Another “Nail in the Coffin” for Smoking in Strata.
If you have any questions about smoking, smoke drift, or changing your smoking bylaw, you can leave a comment or contact Warwick and the team at JS Mueller & Co:
Warwick van Ede
JS Mueller & Co Lawyers
E. warwickvanede@muellers.com.au
P: 02 9562 1266
This post appears in the February 2022 edition of The NSW Strata Magazine.
Question: My new neighbours in the unit above uses incense in their unit every day. The smell fills up my unit and in the public passageway. What legal rights do I have? Is it all right to get the police involved?
Answer: BBQ smoke, cigarette smoke and possibly incense smoke drift could potentially be construed a as nuisance.
The nuisance provisions of the Strata Schemes Management Act, 2015 (NSW) could potentially apply to your situation. BBQ smoke, cigarette smoke and possibly incense smoke drift could potentially be construed a as nuisance.
Section 153:
- An owner, mortgagee or covenant charge in possession, tenant or occupier of a lot in a strata scheme must not:
- use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
- use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or
- use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.
- This section does not operate to prevent the due exercise of rights conferred on a developer by the operation of section 82 of the Strata Schemes Development Act 2015.
Depending on the circumstances in which it occurs, the penetration of smoke from smoking into a lot or common property may cause a nuisance or hazard and may interfere unreasonably with the use or enjoyment of the common property or another lot.
Division 1 of Part 6 contains provisions about the circumstances in which owners of lots may carry out work that affects common property.
We recommend approaching your neighbour in a friendly manner first. If the “nuisance” continues you could apply for Mediation through NSW Fair Trading.
Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440
This post appears in Strata News #522.
Question: We have a by-law stating residents are permitted to smoke on common property. This came about as one lot owner wanted the by-law and no-one challenged him at the time. I am strongly against the by-law and want to know how I can get this smoking bylaw changed.
Answer: The by-law may be invalid or of no force or effect to the extent that it conflicts with other smoking law.
A by-law cannot overrule the provisions about smoking not causing a nuisance under section 153 of the Strata Schemes Management Act 2015 and those rights are enforceable in NCAT. The by-law may also be invalid or of no force or effect to the extent it conflicts with other smoking law referred to below.
Please see some helpful links:
- NSW: Last Gasp For Smokers in Strata
- Strata Schemes Management Act 2015 No 50 – 153 Owners, occupiers and other persons not to create nuisance
Feel free to email me directly at dbannerman@bannermans.com.au if you want to engage us and get some advice to assist you with your by-law problem.
David Bannerman
Bannermans Lawyers
E: enquiries@bannermans.com.au
P: 02 9929 0226
This post appears in Strata News #376.
Question: Our smoking bylaw states ‘No smoking in all common areas AND No Smoking inside your own apartment’. Is this bylaw legal in NSW and if not can it be removed?
We live in a high rise apt block and a few years ago we voted against a no smoking building, but we are not allowed to smoke in all common areas.
Our building has a reasonably large amount of tenanted apartments. Most residents are unaware of the Bylaw stating ‘No smoking in all common areas AND No Smoking inside your own apartment’.
The bylaw clearly states that Owners, tenants, or friends are not allowed to smoke inside your own apartment under any circumstances.
Is this bylaw legal in NSW and if not can it be removed?
Answer: The by-law could be construed as “harsh” or “oppressive”.
The smoking provisions of the strata legislation relate to the “nuisance” that is caused by smoke drift and the new Schedule 3 by-laws restrict smoke penetration to lot and common property.
We have not seen a blanket prohibition on smoking anywhere on lot or common property challenged or upheld. The by-law could be construed as “harsh” or “oppressive” and invalidated on that basis ie that it is harsh that smoking is prohibited within a lot provided that smoke does not escape.
Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440
This post appears in Strata News #376.
Question: How do we handle the other duplex lot owners who smoke outside their lot. Smoke drifts over the dividing fence and into my ageing father’s lot.
We are looking for information about how to handle the other lot owners who smoke in the back yard of their duplex. The smoke drifts over the dividing fence into my ageing father’s lot. The neighbours smoke in an area that is roughly 3m away from his back door and bedroom. This is particularly an issue as he is on the dust disease register.
We have tried NCAT but the matter was rejected in the Administrative Tribunal.
Answer: Smoking could be construed as a trespass, a private nuisance and constitute a violation of your father’s right to quiet enjoyment of his property.
On the assumption you do not wish to further pursue your rights through NCAT, depending on the strength of your evidence, smoking could be construed as a trespass, a private nuisance and constitute a violation of your father’s right to quiet enjoyment of his property.
Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440
This post appears in Strata News #353.
Read next:
- NSW Strata Reforms: Enforcing By-laws by Issuing Notices to Comply
- NSW Q&A: How Do I Stop Cigarette Butts Litter from Neighbours Upstairs?
- NSW: Is Smoking a Nuisance?
- Cancer Council NSW: Landlord ordered to compensate tenant because of smoking neighbour – May 2021
This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
After the latest information about smoking in strata buildings or other articles about NSW strata legilsation? Visit Strata Smoking OR NSW Strata Legislation.
Looking for strata information concerning your state? For state-specific strata information, take a look here.
Are you not sure about some of the strata terms used in this article? Take a look at our NSW Strata Glossary to help with your understanding.
After a free PDF of this article? Log into your existing LookUpStrata Account to download the printable file. Not a member? Simple – join for free on our Registration page.
Hi there,
We live in a complex building in Tweed Heads West, NSW.
The tenants below us are heavy smokers. Until recently, they smoked on their balcony from very early until late during the day.
We approached the Property Manager, and she (the Property Manager) talked to the tenants. The Property Manager and I have exchanged several emails and phone conversations regarding the issue.
The tenants are no longer smoking on their balcony. However, they are now smoking in the underground parking. The smoke caused by smoking cigarettes drifts to the common parking.
I emailed the Property Manager on Thursday, 4 May, as the heavy smoke woke me up at 3:13 am.
Later, on Friday, 5 May 2023, during a phone conversation, The Property Manager suggested we make a Witness Statement the next time we see them smoking.
Today, I witnessed one of the tenants smoking in the garage and emailed the Property Manager a Witness Statement.
The event happened when I accompanied three visitors to the garage so they could drive out. Those three visitors witnessed the above and can give written testimony of what happened if necessary.
Besides the nuisance and hazard caused by the smoking tenants, we are now facing the fact that one of the smoking tenants has confronted us in person.
I walked to the automatic garage door, tapped the key on the garage keypad and let my visitors out. As I was walking back, past the smoking tenant’s car park, towards the entrance to the stairs, the smoking tenant approached me. She stated, “We have not smoked on the balcony since the Property Manager talked to us. What you are doing is harassment”. I responded, “If you believe what I am doing is illegal, use the legal tools available. I have nothing to talk to you about”, and walked away.
We now want to access the legal advice and take the actions available.
We look forward to hearing from you soon.
Kind regards
Hi
We suggest you watch the recent recording involving a similar situation in a NSW strata building. You can view the video here: NSW: How to Stop Cigarette Smoke From Entering Your Apartment
We have a problem at [our] Strata Village where an owner has 2 smokers in her block of 4 units and she is not coping with this. Attempts to S/C and Village Manager are not helping her at all. It seems it is in the 2 hard basket and yet we have a bylaw that says that smokers must smoke inside their unit only or a designated area.
What other options does she have to help her with this situation.
Hi Margaret
In this video, Brenton Pittman details the process they followed when faced with a smoke drift issue: How to Stop Cigarette Smoke From Entering Your Apartment
As there are bylaws in place, you can read all about issuing breach notices here: NSW: Q&A Issuing and Enforcing a Notices to Comply with a By Law
We also have a webinar coming up all about NSW Bylaw Breaches. You can register for the free webinar here: NSW: Bylaw breaches – The step-by-step guide to enforcement
Smoke is an issue in our large rural SP.
It isn’t cigarette smoke, it is wood fire smoke. Once winter kicks in and a large number of the 115 lots fire up their wood heaters there decenes a haze of smoke that permeates through the whole SP.
How would the OCN balance the needs of [staying warm] v the nuisance that need causes for other residents inside their lots?
We often see a STOP SMOKING notice on our front chalkboard in reference to this issue.
Section 153: An owner, mortgagee or covenant charge in possession, tenant or occupier of a lot in a strata scheme must not:
use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or ….
I think if agents and briefs are going to bandy this section about then they need to qualify what nuisance is.
It doesn’t matter a ordinary person thinks it is, it matters what the Courts have said it is.
The difference can be quite dramatic.
Are resident above allowed to use spitter pipes to continually drain water into ground floor units.
This has happened to myself.
The unit was continually issued breached notices then finally ordered to remove their plants.
Ten months later they started again.
Committee Chairman was dishonest when I sought his assistance. He claimed it rainwater.
A video was emailed to strata..
It finally stopped and my pavers turned white.
Requested a building inspector ×2.
Was told no by the committe as the pavers were in my court yard and my responsibility.
Told strata I’d have to go to fair trading.
Next thing the committee researches our Strata Managers contract .
The contract expires in about six weeks.
The Committee vote on a new Strata manager.
I’ve sent a detailed email to the new Strata Manager outlying what occurred.
He came back stating the pavers were my responsibility.
1. Is a committee member alliwed to say residents are permitted to use spitter pipes.
2. Am I responsible for another resident wilfully draining water into my courtyard and damaging my pavers.
3. How can I resolve the issue
Hi Debra
This article should assist: NSW: Q&A Water Dripping Over Balcony From the Neighbour Above
When I requested emails and documentations from the new Strata. Manager he replied he had looked through the files sent over from the old Strata Manager and there weren’t any files.
I have correspondence on my computer re the issue.
The Strata Manager is not co-operating and being honest.
Not sure what my options are now.
Debra Adsett
We have passed. Pets By-Law, the problem being the Owners Corp allows pets to walk on Common Property on a lead.
Each resident is allowed 2 pets.
This is extremely dangerous as animals on leads become. potential trip hazzards, especially on the stairs.
If an accident were to occur Strata does not cover insurances
Is there anyway it can be enforced pets must be carried on the common property
Hi All
Start doing some research and request that a no smoking policy or by law is put on the next AGM agenda for a vote. The Cancer Council NSW have a Fact Sheet on their website entitled: Smoke free By Laws: know your options. There are national and international cases where a smoke free policy has been adopted and also prevention of smoking on common property and balconies. The Cancer Council recommends a 100% smoke free policy. Passive smoking from smokedrift is dangerous. and is a nuisance. The argument posed by smokers is that you would infringe on their rights, but what of the rights of those who have smoke drifting into their apartments via cracks, ventilations shafts and from balconies. Smoking is banned in the workplace so why not everywhere els!
Several cases have been won in Australia by non smokers who have been affected by smoke in the apartments.
Start lobbying your strata council, local government etc…..the only way to change the situation is to get involved and become a non smoking advocate!
Thanks Cleo. For the help of our readers, I have linked to the resource you mention in your comment.
We also note, Cancer Council NSW also has a comprehensive toolkit packed full of other related resources: An information kit for tenants and owners in strata schemes
I live in an apartment block (for over 12 years now). I am a smoker, as is my partner. We have a large garden area (ground floor, away from the upper level balconies) in which we have smoked for those last 12 years, without a single complaints. New tenants have moved in and they like to keep their doors open 24/7 but also like to complain each and every time we have a cigarette. They’ve thrown water over my partner (sitting outside) and been both rude and abusive about the whole situation. I’d like to know, what are our rights? We’ve tried to cut down, we generally try to smoke outside the building now but as we both work very long weeks, we like to throw on our comfy attire (pjs) of a Fri/Sat night….have a glass of wine and a cigarette. We have lived here for so long and there’s never been issues till now. Our building is not a non smoking building and other people smoke also. Should I try to discuss the issue with our neighbours and offer a compromise? Would appreciate a response without being ostracised!😞
Nobody will be on your side unfortunately.
QUESTION: Who may move a motion to amend a motion? Can, for example, an owner present at the AGM, move a motion at the AGM to amend a motion put forward by the committee?
Just would like to mention that the committee can’t put forward motions. I know that might come as a surprise to many but there is no authority in the Act for the committee to do so. The Act creates a ‘class’ of person who can submit motions and typically in statutory interpretation if the statute creates a class it is to the exclusion of other classes.
There are other issues surrounding the concept the committee can include motions such as it creates an avenue for otherwise non entitled persons to get a motion on an agenda but the bottom line is there is no authority for the SC to put motions on an agenda.
The bylaw clearly states that Owners, tenants, or friends are not allowed to smoke inside your own apartment under any Circumstances.
Regrettably by-laws do not apply to visitors (friends). It is possible through a by-law to try to place responsibility for friends behaviors back onto a owner or occupier but the by-law would not apply directly to the friend.
Consider; how does the OC apply the by-law to a friend when the OC would have no idea who they are or where to serve a notice to comply to them.
As the owner has invited the friends, the penalty would apply to the owner.
An example, if I was overseas, and I had a friend minding my place, and my friend damaged the common property, it would be the owner’s fault to rectify as s/he invited the friend. It would up to the owner to seek redress from her or his friend. Not up to you to find out the details of this friend.
Hope that is clear.
Just want to mention i now have a NCAT matter where, i think it is the Dept Pres., who feels the committee can submit motions.
Of course the Member’s claim is unqualified. It seems more the case of – of course the can they are the SC.
I would still maintain they can’t.
And i qualify it with reference to Qld legislation and the circumvention of other parts of the Act that allowing it can result in.
Hi All,
I have emailed to Strata management three times about the strong toxic smoke in my apartment since 20 Mar 20. I have been waiting them the response. Building manager Colin came to my home to check the smoke on 5 June and sent a handyman Bob to replace seals for my windows and doors. Both Colin and Bob smelled the strong toxic passive smoke in my home from my apartment below and could not suffer for it. However, I suffer, struggle and stress for the strong toxic passive smoke in my home every day.
I live in level 12. A Chain-smoking person is living in my apartment below level 11. He smokes from earlier morning until at night after 1:45 am. Sometimes he smokes at 3:30 am or 5:30 am. After replaced the new seals for my windows and doors, I still smelled the toxic passive smoke. Every day the toxic passive smoke drift stay in my home for longer hours. I cannot sleep and my throat is very uncomfortable and sometime I cough a lot. Especially COVID-19 impacts, I need to stay at home longer time for Coronavirus pandemic. However, the toxic second-hand smoke is made my home unliveable.
In our building, high percentage of residents are tenants from overseas. They are overseas students or working visa holders. They smoke a lot and until mid-night. The passive smoke drift are also from another apartment. I close all my windows and doors and turn on my new Air Purifier in the strong button but the strong toxic smell still get into my home.
I am afraid to turn on my ceiling exhaust fan. That is because the passive smoke can get through from the exhaust fan into my home. Even though I do not turn on the exhaust fan, the passive smoke still can get in. Every night, I cannot sleep until smokers finished smoke around after 2:00 am. Then I open all my windows and doors to let the fresh air in and the passive smoke away from home during the chilly weather. But the Chain-smokers smoke again at the midnight. My apartment is full of passive smoke again. It is so frustrating.
Everyday I struggle and upset for the toxic second-hand smoke problem in my apartment. Now more people work at home as a second office. I extremely expect our apartment is a smoke-free apartment.
I believe that I am not the only one to face the toxic second-hand smoke problems in apartment. Please help us to stop the chain-smokers to cause of ill health, nuisances and hazard for us ASAP. Please set new laws to prohibit smoking in apartment so that we can enjoy our daily live in apartment.
Thank you and best regards,
YES HELEN I TO HAVE THE SAME PROBLEM.DOES ANYONE DO ANYTHING ABOUT IT AND WHERE CAN I GET CONTACT N0;
Hi Ian
This article about a recent smoking case may assist: https://www.lookupstrata.com.au/nsw-smoking-nuisance/
Hopefully the smoking prohibitions can be applied to the use of petrol powered leaf blowers – even though the SC is likely to have hired the perpetrator of this filthy, noisy and unnecessary methodology.
I’m in NSW, renting a unit and other tenants in the block smoke outside & on the balcony & the smoke drifts into my place. As I’m an asthmatic I find it very stressful. By the time I close windows & doors the smoke is inside. Do I have any rights here? I’ve contacted the agent who informs me the strata say our block doesn’t have the law to stop it. What about the new legislation introduced in NSW in 2016 about the new model by law (which must be adopted) regulating smoke drift? It offers 2 options A & B. If neither option is selected, option A will apply, stating no smoking on common property.
I relate fully to the situation of occupiers trying to enjoy their homes when smoke drift penetrates from units nearby. This situation is hazardous to health and an infringement on quiet enjoyment of our homes. In our units we have new tenants who smoke as do their visitors. This creates havoc for neighbors, who have no choice but to close doors and windows, and remain indoors or leave the premises, to avoid smoke. Strata units need a ban on all smoking, for the sake of the health and enjoyment of all residents.
Good afternoon, I’m in Queensland and I’m waiting for rhe day that cigarette smoking is banned in residential buildings. The elderly woman in the apartment below me smokes and all the units cop the smoke. It’s like a chimney effect and nobody likes it. It affects my health, too. When will something be done in every state to stop this situation?
I’ve written to Body Corporate and was advised to close my doors and put aircon on, that smokers have the right to smoke on their balconies and that I could move out.
Hello Leanne,
The Executive Committee of my strata has decided to delete the by-law regarding parking. This will cause chaos with some residents not being able to access their garages and others parking on the common property causing a third group to have to do several three point turns to both enter and exit their spots.
In your opinion is the omission of a parking by-law the same as an unjust by-law?
Restrictions on by-laws
The new strata legislation has enacted a new restriction on by-laws, namely, that a by-law cannot be unjust, harsh, unconscionable or oppressive.
I look forward to hearing from you.
Regards,
Jo Daly
Hi Jo
Thanks for your question. We have received this response back from Leanne Habib, Premium Strata:
In our view, the absence of such a by-law is not “unjust” perhaps just unwise. There is no positive requirement for an owners corporation to have a parking by-law in place, however, it sounds as though this will cause chaos in your building. Further, it also sounds unlikely that the Owners Corporation will avail itself of its powers under the regulations to have obstructing vehicles removed.
You will likely need strata specialist legal assistance with this matter as there appear to be 2 courses of action open to you – apply to NCAT to have the by-law revived or apply to NCAT for a compulsorily appointed agent (if you meet with threshold that the scheme is dysfunctional)(the latter course is a high threshold).
In addition to the above, the offending vehicles parked on the common property may be in breach of the nuisance and hazard provisions of the strata legislation. Under such legislation no owner or occupier may use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot.