A recent Office of the Commissioner for Body Corporate and Community Management decision has shown how an order restricting smoking can be achieved. Read on to find out!
Nuisances (of all types) in community title schemes are one of the most motivating reasons for disputes. Of those varying types of nuisances, smoking has always been at the top of the list of polarising issues.
Owners and bodies corporate have usually come up short in trying to prevent smoking in a scheme, irrespective of the issues that it has caused.
For some time there has been talk of legislative reform to allow smoking to be banned. This position has generally received strong support but has never eventuated.
A recent Office of the Commissioner for Body Corporate and Community Management (OCBCCM) decision has shown how an order restricting smoking can be achieved – by not treating it as a nuisance!
Usual position
The starting point for nuisances has always been section 167 of the Body Corporate and Community Management Act 1997 (Qld) (BCCMA) which relevantly is titled “Nuisances” and provides that:
167 Nuisances
The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that—
- causes a nuisance or hazard; or
- interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
- interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.
The Tobacco and Other Smoking Products Act 1998 (Qld) (TOSPA) then essentially provided that smoking in a substantially enclosed area on common property was unlawful.
This meant that bodies corporate would typically seek to prevent smoking by installing a by-law. As a by-law cannot prohibit conduct that is lawful, it would try and regulate the smoking to the same extent as section 167 of the BCCMA and TOSPA.
This meant the body corporate needed to prove the smoking (which was not in a substantially enclosed area of common property) caused a nuisance or interfered unreasonably.
The Queensland Civil and Administrative Tribunal decision of Norbury v Hogan [2010] QCAT 296 is the leading decision on what was needed to prove a breach of section 167 of the BCCMA and has since been adopted by adjudicators.
For example, in Sun Crest [2010] QBCCMCmr 524 the adjudicator relevantly provided:
“The test of nuisance is an objective one and determined ‘in light of ordinary notions of reasonable standards for the use and enjoyment of a Lot … Once that is acknowledged, a finding that s. 167 is offended could only be made, in the circumstances arising here, if it was established that the cigarette smoke emanating from [the lot] is of such volume or frequency that it would interfere unreasonably with the life of another lot owner of ordinary sensitivity.”
Essentially evidence was needed to prove the location and source of the smoke, as well as the volume – and that this created an unreasonable interference or nuisance. Whilst it was common that this standard was likely to have been met, proving it was almost impossible because measuring the volume of smoke can only be done with expensive equipment.
What has changed now?
Nothing.
However, a recently circulated OCBCCM decision at Artique Resort has suggested a different way of applying section 167 of the BCCMA.
Section 167 of the BCCMA refers not only to nuisances and unreasonable interferences. It also refers to hazards in subsection (a).
If sufficient evidence of the smoking can be put forward that proves the smoking creates a hazard, as opposed to an unreasonable interference, a breach of section 167 can be made out.
What should bodies corporate do?
The body corporate does not need a by-law to enforce section 167 of the BCCMA. However, implementation of a proper by-law that encompasses hazards as well as nuisances is best practice.
This allows by-law contravention notices to be properly issued (which can be a more practical step) without the need to wait for an order of the adjudicator – which can take months or years.
If you need help with smoking issues at the scheme, please contact us.
Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753
This post appears in Strata News: QLD Special Alert – Smoking as a Hazard.
Have a question about challenging smoking as a hazard in QLD Community Title schemes or something to add to the article? Leave a comment below.
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This article has been republished with permission from the author and first appeared on the Mahoneys website.
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Good decision
Interesting also the constraints imposed:
“. . . may only smoke tobacco products . . . if she takes reasonable steps to ensure that tobacco smoke emanating from her lot does not affect any person lawfully using another lot, for example by closing windows and doors . . .”.
The final two paras deservedly canned the Committee “for failing to act reasonably in undertaking its functions and in making decisions.”
Hi Christine
This decision would apply to any parts of scheme land – which includes lots and common property. It does not extend to areas outside the scheme land.
The important thing to remember with this decision is that it was enforced based on an existing provision of the legislation – so it does not matter what the by-laws said when a smoker purchased the lot.
Thank you for clarifying this issue. I guess unless you have a complete knowledge of the legislation we don’t have a leg to stand on and the term “reasonable” no longer applies eg barking dog, crying baby, noisy neighbours, loud music or TV, leaf blower, etc etc
Todd…good article about a very welcome Adjdn,
Can you please advise, in simple terms if possible, how it is easier to establish a hazard than a nuisance?
Hi Ross
The test that was established to prove a nuisance was set out in the Norbury v Hogan QCAT decision – which required evidence of the volume and frequency of smoke. As it turns out this was very difficult to obtain.
Adopting the position that the smoke is hazardous is not a controversial argument and is seemingly an easier threshold to meet.
Does this mean all areas set outside of hotels will now be subjected to the same nuisance clause? If a smoker purchased a lot before this bylaw was introduced can they be prosecuted for smoking in an courtyard if a neighbour says it’s a nuisance even though it’s not illegal to smoke ?
Hi Christine
This decision would apply to any parts of scheme land – which includes lots and common property. It does not extend to areas outside the scheme land.
The important thing to remember with this decision is that it was enforced based on an existing provision of the legislation – so it does not matter what the by-laws said when a smoker purchased the lot.
Wow! Very interesting article.
‘Passive smoke’ is an issue at our complex and sadly due to the emotional tension from some residents about this issue its very difficult to have a fair and reasonable discussion on the topic.
Maybe we need to readdress the smoking issue as a hazard?
Food for thought.
Great news and so long overdue! Let’s hope that many complaints go in and that practice ceases. It is beyond doubt that sidestream smoke is a serious hazard to the health of those in its path. Ridiculous that we need to close our bedroom window to avoid our neighbours deadly habit.