NSW: Is Smoking a Nuisance?

This article about smoking, smoke drift and nuisance in NSW strata has been provided by Colin Grace, Grace Lawyers.

In the recent decision of Gisks v The Owners – Strata Plan No 6743; The Owners – Strata Plan No 6743 v GISKS [2019] NSWCATCD 44, the New South Wales Civil and Administrative Tribunal (NCAT) found that smoke drift emanating from a lot onto a neighbouring lot is a nuisance because it is an interference with the lot owner’s use and enjoyment of the lot. This ruling indicates that smoke penetration from a lot onto another lot is potentially a nuisance and hazard. But, why?

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Background

The lot owner made a number of complaints to the Owners Corporation over 2 years relating to second hand tobacco smoke drift from the neighbouring lot which came into his living room and kitchen via windows and doors and depending on the wind flow direction, all of the rooms within his lot. The complaints related to health and safety being of primary concern and the view that inhalation of cigarette smoke is a toxic chemical cocktail.

The neighbouring owner stated she only smokes in the lounge room of her lot and the majority of the time, closes the bedroom door or window when smoking. She stated that she does not smoke in the bedrooms which are near the other lot balcony or common property.

The Owners Corporation did not consider the complaint to be a matter concerning it and as such the complaint was a civil matter as it only affected one person. Nevertheless, the strata committee issued notices to all residents in relation to the complaint.

Position at law

Section 153(1)(a) of the Strata Schemes Management Act 2015 (NSW) (the Act) states:

1. “An owner, mortgagee or covenant charge in possession, tenant or occupier of a lot in a strata scheme must not:
   1. 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
   2. Use or enjoy….., or
   3. Use or enjoy……

Note. 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.

2. 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”.

The Tribunal Member considered the text in the Note emphasising that it contains a broad indication (emphasis added) that smoke from one lot into another may cause a nuisance or a hazard and as such, may be a breach of section 153 of the Act.

• In Bill Sheath and Rhonda Sheath v Rick Whitley and Sandra Whitley [2014] NSWCATCD, the Senior Member was of the view that while smoking is not illegal and there is no legislation which prevents a homeowner from smoking within the boundaries of their home, that is not necessarily the case with a strata scheme by virtue of section 117(1)(A) (now section 153) of the Act. The Senior Member found that inhalation of smoke can cause an increased risk of adverse health effects and as such, is a “hazard” pursuant to section 117(1)(A) (as it was then). Further, it is not necessary to establish an intention but the fact that an increased risk of adverse health effects is in itself, a hazard. While section 117 is not identical to section 153 (now), it is substantially in the same terms. The Senior Member ordered that the respondent is not to smoke or allow others to smoke in an area of a certain dimension from the boundary of the neighbouring lot.
• Adams v New South Wales Land and Housing Corporation [2016] NSWCATAP 31 concerned a decision to terminate a social housing tenancy agreement on grounds of breach of the agreement, namely, whether the tenant had caused or permitted a nuisance. The appeal Panel summarised the definition of private nuisance as follows: “In summary, the main features of a private nuisance are:
  1. an interference, by the defendant (tenant) in his/her use of his/her land (premises), with an occupier’s (neighbour’s) use and enjoyment of his/her land (premises) – an interference can be physical damage to property or person and non-physical damage (e.g. damage caused by air pollution, vibration, noise and dust). However, the damage must at all times be to the occupier’s (neighbour’s) use and enjoyment of his/her land (premises);
  2. the interference must be substantial and unreasonable; and
  3. the test as to whether the interference is substantial and unreasonable is objective.”
  The Tribunal adopted a broad approach to Section 153(1) by finding that reference to “nuisance” is a “reference to conduct of the kind that is likely to give rise to a private nuisance liability” and as such, private nuisance did apply.

NCAT’S decision

The Tribunal Member accepted the lot owner’s evidence in relation to smoke drift from the neighbouring lot. The Tribunal Member found that while the Owners Corporation’s managing agent strived to address the smoke drift complaint, the strata committee erred in its approach and misconceived the operation of section 153 by not addressing the matter properly. The fact that the lot owner complained of the issue from 2015 to 2017 led the Member to find that the complaints are not trivial or lack a serious element.

The Tribunal also found that the smoke drift emanating from the neighbouring lot is a hazard (for the same reasons in the case law above) AND a nuisance because it is an interference with the lot owner’s use and enjoyment of his lot which is unreasonable and substantial.

Orders made

The Tribunal ordered that at all times, the neighbouring lot occupant must not smoke on the balcony or in the bedrooms of her lot AND must close all exterior doors, bedroom windows and bathroom window when smoking in her lot.

As for the Owners Corporation, since there are no by-laws by the scheme in relation to smoke penetration or drift, the Tribunal was unable to make an order requiring the Owners Corporation do anything.

Learnings

The Tribunal is adopting a broad interpretation of section 153 of the Act by not only considering acts (or omissions) which can cause a nuisance or hazard but other conduct that is likely to give rise to a private nuisance liability claim. To avoid future litigious claims and proceedings by lot owners in similar situations, it is crucial that a strata scheme undertake the following:

1. Treat any complaint in a serious manner and when it first arises as any delay by the body corporate can jeopardise its position; and
2. Ensure the scheme has by-laws in place to address and regulate smoke penetration and drift; and
3. Ensure that notices in relation to smoke penetration and drift are circulated to act as a transparency measure and supplementary to the by-laws.

Embed

This post appears in Strata News #285

Read next:

• NSW: Last Gasp For Smokers in Strata
• NSW: What are the rules around smoking in strata buildings?
• NSW: Taming Keyboard Warriors – How to Deal With Unreasonable Strata Communications

Colin Grace Grace Lawyers P: 02 9284 2700 E: colin.grace@gracelawyers.com.au

This information is intended to provide a general summary only and should not be relied on as a substitute for legal advice.

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