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QLD: Q&A Smoking and Smoke Drift in Strata

The LookUpStrata Team
Vaping

These Q&As are all about smoking in strata in Queensland. Can you have a no smoking bylaw? Can you ban a resident from smoking on their balcony or in common areas?

Jan 2022 UPDATE: A recent Office of the Commissioner for Body Corporate and Community Management decision has shown how an order restricting smoking can be achieved. Read this article to find out: QLD: Smoking in a community title scheme.

Table of Contents:

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Question: With the new smoking laws from 01 May 2024, would a body corporate be liable if they continued to allow smoking on common property?

Answer: Bodies corporate that do not have a valid by-law prohibiting smoking will expose themselves to a lot of criticism, complaints and disputes from owners and occupiers concerned about smoke.

From 1 May, the BCCMA will be amended to provide that a by-law prohibiting smoking on common property will not be oppressive or unreasonable. Flipping that around, that means from 1 May, the body corporate can have a valid by-law prohibiting smoking. The mechanics of achieving that will, for some (many?) bodies corporate, mean they will need to amend their by-laws.

So, then, for bodies corporate that do not proceed down that path and instead opt to do nothing to regulate or prohibit smoking or do nothing to address owner or occupier concerns about smoking, where does that leave them? I think that is where your query about ‘liability’ kicks in. I am not a lawyer, and I do not have insurance-related expertise, so I cannot comment on ‘liability’ in either of those very specific contexts. If we talk about risks and practical impacts for bodies corporate though, I certainly have the expertise to speak on those points. The risk is that from 1 May, bodies corporate that do not have by-laws reflecting the above will expose themselves to a lot of criticism, complaints and disputes from owners and occupiers concerned about smoke. All of which will involve time, money and stress. There may be implications for property values: a body corporate that does not act on smoking concerns may not be an attractive prospect for someone wanting to buy a lot.

And then, of course, the biggest risk of all – the health impacts of second-hand smoke. Let us not forget that one of the main instigators of these new strata smoking laws is this adjudicator’s decision, in which second-hand smoke was found to be a hazard. Does the body corporate want to be ‘liable’ for a potentially life-threatening hazard on common property?

I think we all know the answer to that.

This is general information only and not legal advice.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

Question: How will the changes to smoking laws in Queensland body corporate buildings affect vaping and the medicinal use of cannabis?

Answer: The new strata legislation does cover vaping, but the medicinal use of cannabis is unclear.

The new strata laws are about ‘smoke’, the definition of which is linked to the definition in the Tobacco and Other Smoking Products Act 1998. Here’s that definition:

    smoke means—
  1. for a smoking product other than a personal vaporiser or a hookah—smoke, hold or otherwise have control over an ignited smoking product; or

  2. for a personal vaporiser—inhale through the vaporiser; or

  3. for a hookah—inhale through the hookah.

So, vaping IS covered by the new strata legislation, and the medicinal use of cannabis is unclear, I’m afraid. There are a few other instances of the new strata legislation not covering what we might consider as ‘smoke’: despite submissions from Strata Solve pointing it out, smoke from barbecues, wood-smokers or open fires are not covered by the new strata legislation.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #677.

Question: A lot owner has been leaning over their balcony to take photos of the owner below smoking. They’ve shared the photo with the committee as proof that their neighbour is interrupting the peaceful enjoyment of their lot. Is this legal?

Answer: Both smoking and taking photos are lawful activities. However, there are some restrictions.

Both smoking and taking photos are lawful activities. However, there are some restrictions.

Photographs

Relevantly, photos cannot be taken in a private area. This usually extends to bedrooms or bathrooms and may not extend to an outdoor balcony. However, by leaning over the balcony, the lot owner may be conducting themselves in a way that creates a hazard – this is restricted by the BCCMA and usually by a by-law.

Smoking

Although smoking is lawful – if it unreasonably interferes with the use and enjoyment of a lot or common property by another person (or creates a hazard) it is unlawful – this is also restricted by the BCCMA and usually by a by-law. Whether the specific circumstances offend these provisions will depend on the frequency and intensity of the smoke drift (and whether it can be evidenced).

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in the December 2023 edition of The QLD Strata Magazine.

ARTICLE: The right to end smoking in QLD body corporate buildings?

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.

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

This post appears in the October 2023 edition of The QLD Strata Magazine.

Question: I rent a townhouse in a gated complex. Can I vape outside and within my lot? Would a by-law apply and if so, where do I find the by-laws?

Answer: Unless there is a by-law restricting smoking, you should be able to smoke outside your townhouse.

As a tenant, your agent or landlord should have provided you a copy of your by-laws when you moved in. If you don’t have one, ask them for a copy. You can also ask them for clarification on the laws around smoking. They should be able to assist.

Unless there is a by-law restricting smoking, you should be able to smoke outside your townhouse.

Mostly, the rules around smoking consider smoke drift and how that affects other lots around you – so if the smoke you create drifts and creates a problem for another occupant, you could be subject to a complaint. I don’t think there is a difference between whether you smoke cigarettes – both create smoke, although vape smoke tends to cause less offence.

Smoke drift is a common source of aggravation in tower-type buildings where smoke can easily move from one balcony to another but might be less of a concern in a townhouse, depending on the distances involved. Still, be respectful of your neighbours and hopefully, they will be respectful to you.

If there is a by-law restricting where you can smoke, of course, you should abide by that.

Lastly, the State Government has announced that it plans to introduce changes limiting smoking behaviour on common property. We don’t know the full details of what those changes are or when they will be introduced, but it is likely that they may have some effect on smoking issues like yours when introduced.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #644.

Question: Is there a standard no smoking policy for strata corporations in Queensland? Can we introduce a standard no smoking by-law with various amendments, as needed?

Answer: A no smoking by-law or policy is unlawful.

A no smoking by-law or policy is unlawful. The law, as it stands now, is that smoking is a lawful activity and bodies corporate cannot:

  1. prohibit an otherwise lawful activity (for the same reasons it cannot ban pets); or

  2. make rules that are inconsistent with legislation.

That said, what is not lawful is smoking in a:

  1. way that unreasonably interferes, causes a nuisance or causes a hazard with another person’s use and enjoyment of their lot or the common property – pursuant to section 167 of the Body Corporate and Community Management Act 1997 (Qld); or

  2. substantially enclosed area on the common property – pursuant to the Tobacco and Other Smoking Products Act 1998 (Qld).

Accordingly, a by-law that mirrors these requirements would be enforceable. A by-law that oversteps these restrictions would be unlawful.

I would be happy to be engaged to assist by drafting a motion and by-law to propose an enforceable smoking by-law. This would need to be approved by special resolution and a new community management statement recorded in the Titles Office.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in the March 2023 edition of The QLD Strata Magazine.

Why now is a really good time to introduce a ‘No Smoking’ bylaw

In this video, Nikki Jovicic from LookUpStrata chats with Chris Irons from Strata Solve and Will Marquand from Tower Body Corporate about a recent Office of the Commissioner for Body Corporate and Community Management decision concerning smoking in QLD strata schemes in early 2022.

This decision rocked the world of bodies corporate (in QLD anyway)! The scope of this chat is to provide the LookUpStrata audience with some clarity about the decision, why it was successful and most importantly, what it means for residents in QLD strata buildings – both the smokers and the non-smokers.

We talk about what your building, or you personally, should be doing right now if you are affected by smoking.

We provide an outline of the decision and why it’s important. Watch the embedded video above to find out. We chat about:

You can read the full decision here: Artique [2021] QBCCMCmr 596.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #540.

Question: If we wished to mount a successful case of nuisance against a persistent smoker at our complex, would it be advisable to obtain expert evidence re the dangers of smoke drift.

Our By-Laws were recently updated for us by a strata lawyer, and they provide that an owner or occupier must not smoke, or permit a visitor to smoke, in their lot if it unreasonably interferes with the use or enjoyment of another person in a lot or common property.  

We understand in Queensland, the Adjudicators have consistently refused to order an owner/occupier to ‘cease and desist’ smoking in their own lots, even on their balconies, because the complainants had failed to prove their case, ie unlawful nuisance.  

If we wished to mount a successful case of nuisance against a persistent smoker at our complex, would it be advisable to obtain expert evidence re the dangers of smoke drift in general and in the particular circumstances of each case?

Answer: It is difficult to get a successful outcome from an adjudicator regarding smoking

Short answer? Yes.

Longer answer? As you’ve correctly noted, it is difficult to get a successful outcome from an adjudicator regarding smoking. This is essentially because the test for nuisance (as provided for in section 167 of the Body Corporate and Community Management Act 1997) has been established in the Courts and it is a high threshold. Without going into the gory details, it’s not enough to simply say ‘that person is smoking, they’re causing a nuisance’. Legal advice could assist the body corporate in make its necessary case against the smoker.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #508.

Question: Why are the rights of smokers in strata more important than the rights of those who choose not to smoke. It should not be left to Strata by-laws or Owners Corporations to determine whether we breathe clean air!

Neighbours in my multi unit complex smoke on the balcony resulting in smoke drift through my window and directly into a room I share with two babies. The smoke drift comes into every room including the kitchen.

The laws should seriously change to stop people in multi unit dwellings smoking on their balconies as they are forcing their toxic smoke onto neighbours. We have tried talking to the neighbours and the on-site manager.

I don’t understand why the rights of smokers are more important than the rights of those who choose not to smoke. It should not be left to Strata by-laws or Owners Corporation to determine whether we get to breathe clean air!

Answer: You can initiate proceedings for nuisance or if your body corporate has by-laws about smoking you can potentially initiate proceedings for by-law breaches.

At the risk of sounding blunt, yes, you can do something about it, BUT nothing will happen unless you initiate it yourself and take the steps to make it happen. I can tell you that those steps will seem convoluted and complex, so the decision for you is whether you go through with it.

You can initiate proceedings for nuisance or if your body corporate has by-laws about smoking you can potentially initiate proceedings for by-law breaches. I note you say you’ve tried talking to the onsite manager. You need to be raising your issues with the committee rather than the onsite manager. There is a very specific process you need to go through for pursuing nuisance or by-law issues and those are outlined in the article you’ve commented upon. You may also need to seek some advice about that. You’ll also need evidence to back up what you are saying, which might mean keeping a log or journal of issues.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in the March 2021 edition of The QLD Strata Magazine.

Question: Smoke drift is driving me insane. Can the body corporate change the by-laws to put the onus on the smoker to ensure their smoke doesn’t cause a nuisance? Or would this bylaw be considered oppressive and unreasonable in QLD?

Smoke drift issue is driving me insane. I have a toddler and baby whose young lungs I want to protect but our upstairs neighbour always smokes, and the smoke always drifts onto our balcony.

I’ve asked the body corporate to change the by-laws to put the onus on the smoker to ensure their smoke doesn’t cause a nuisance, even when they smoke in the ‘privacy’ of their own balcony. This is a law that has been adopted in New South Wales, which I thought was a great solution because it doesn’t actually ban smoking, it just forces smokers to be more conscious of people around them. My body corporate is hiding behind the strict letter of QLD law, saying they can’t (or won’t) include such a by-law.

Or could a bylaw such as this be considered oppressive or unreasonable? Would it pass the test if it were ever to be challenged?

As an aside, I find it astounding that the QLD government has numerous laws in place to protect children from exposure to cigarette smoke when they are at school/daycare, at a playground or sporting event – they are even protected on car journeys, which is interesting as it is not a public space – yet there is this gaping lack of protection the minute the children arrive home. This borders on negligence in my view – after all, where do children spend the bulk of their time outside of school? Hello, home!

Answer: I’m not sure your proposed by-law would be oppressive or not but it does seem possibly unenforceable.

I’m not sure your proposed by-law would be oppressive or not but it does seem possibly unenforceable – how is someone going to control the flow of smoke from their balcony? Should it be enclosed? Fans installed? A vent? What if those options are either really expensive or not practical?

I’m not disagreeing with your wish to be smoke-free. I’m just saying that you’d need to consider all of the above, and more because these would be the responses of the smoker in question and would likely be considered by an adjudicator if there was a challenge.

You can request a motion be placed on the agenda of your next general meeting seeking the by-law you want, but if you did do that then I’d urge you to keep the above points in mind and have answers ready, otherwise, your motion is likely to fail, or not even get considered.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #426.

Question: We’ve installed synthetic turf in an area of common property. As this is only a small part of the shared common ground, can we make this a smoke free area?

We’ve installed synthetic turf in some of the common property. The installers have recommended no smoking near it to prevent burn holes from live ash and butts.

Can we put in a motion at the AGM to make this a smoke free area based on the fact that it’s only a small part of the shared common ground?

As a bylaw cannot be too oppressive or unreasonable I would think that a small area of the common area that has smoking restrictions due to the installation of synthetic turf would fall into the reasonable category.

If we were able to have such a bylaw would we put in a motion at the AGM / special resolution for a new bylaw?

Answer: A by-law prohibiting smoking on common property may be open to challenge.

Limitations on what by-laws can do are provided for in section 180 of the Body Corporate and Community Management Act 1997 (BCCM Act). As you’ve correctly pointed out a by-law must not be oppressive or unreasonable (section 180(7) of the BCCM Act). One of the ways in which a by-law might be oppressive or unreasonable is when it is framed as a prohibition. By-laws are meant to regulate, not outright prohibit.

Regarding smoking, there’s some fairly well-established case law about smoking in bodies corporate. A by-law prohibiting smoking on common property may be open to challenge. Your email talks about both a ‘smoke-free’ by-law and some restrictions about smoking on the common property. I’d say these are 2 separate things. If you’re intending to submit a motion about a new or revised by-law, you need to get that distinction clear.

By-laws need to pass by special resolution (section 62 of the BCCM Act) at a general meeting.

It will ultimately be an adjudicator in my former Office that makes the determination about whether a by-law is unreasonable or oppressive and they will consider things on a case by case basis. It’s up to the body corporate in your scheme to act reasonably and if ever a by-law about the synthetic turf was to be challenged, it would be up to the body corporate to demonstrate why the decision about the by-law was reasonable in the circumstances.

Before all of that, though, there might be some practical and informal steps. If it hasn’t already happened, could there be communication to all owners and occupiers about the turf? You can’t assume everyone knows about its installation and what might happen if there are ash and butts. Perhaps you can provide to all owners and occupiers a copy of the installers’ advice to really illustrate your point. You might like to think about doing that informally first in a circular or newsletter, or with a notice near the turf, before (or even rather than) opting directly for a by-law. It would be cheaper and less time-consuming.

I’m with Hynes Legal in a non-legal capacity to provide a pragmatic perspective to and solutions on body corporate issues. This query is a great example of a situation that has some dedicated legal avenues but which also has a range of other, non-legal possibilities which might also resolve the matter and do so in a more harmonious and effective way. Feel free to discuss these sorts of things with me.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #397.

Question: Our complex will not do anything about residents smoking on strata balconies. With the Coronavirus, smoking laws need changing urgently.

Our complex will not do anything about residents smoking on balconies. We have to shut our doors and windows as smoke drift is coming into our unit all day long.

Surely at least in times of Coronavirus with responsible people staying home all day, Body corporates or Unit Managers should at least put a stop to this health risk to all residents.

We all should be able to breathe without constant cigarette smoke coming in. Nothing is being done in this complex. With the Coronavirus, smoking laws need changing urgently.

Answer: The body corporate is able to regulate activity on common property. When it comes to someone’s lot though, they don’t have that same power.

The government has said and done many things in relation to COVID-19 and has issued many orders as well. One order they haven’t made, to the best of my knowledge, is to outlaw smoking.

While we may have strong objections to smoking, the fact remains it is legal to smoke in Queensland. So it is also legal to smoke in a body corporate, albeit with some possible restrictions. For example, when it comes to use of common property.

The body corporate is able to regulate activity on common property. When it comes to someone’s lot though, they don’t have that same power. Additionally, it isn’t the role of onsite managers, body corporate managers or caretakers to regulate people’s behaviour – that’s the role of the body corporate, to enforce through by-laws.

In relation to smoking, there is scope for you to pursue by-law breaches and also nuisance breaches either as an individual or through your committee, and there is also nothing stopping you discussing with your committee your concerns, as well as putting up motions to general meetings if that’s what you’d prefer.

If you want laws changed, then that’s a matter for you to take up with your elected representatives.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #333.

Question: A tenant’s smoke drift in our strata is going into common areas. He has been served a Form 11. How do we either make this stop or evict the smoker?

A tenant’s smoke drift in our strata is going into common areas and there have been verbal complaints and complaints sent to the Real Estate Property Manager. The Property Manager said the tenant is in breach of his rental agreement because it states no smoking in the unit or in the closed-in balcony area of the lot.

The tenant has been given a form 11 but still continues to smoke. We are aware we should be compiling evidence and lot owners now have a record which will hopefully help to evict the tenant if this continues.

How can this be done? It’s the tenant’s word against all other residents. Politely asking him to cease hasn’t worked and has made things uncomfortable for those who have asked, either politely in person or through the property manager. Other occupiers now don’t want to put a complaint in writing or come forward because of retaliation.

Answer: There is a cross here between a tenancy issue and the body corporate issues.

There is a cross here between a tenancy issue and the body corporate issues.

Any breaches of the rental agreement are a matter between the owner of the lot and the tenant where the property manager, acting as agent for the owner, would be the middle person. This means the property manager should only be acting on the owner’s instructions in relation to any rental agreement breaches.

As a completely separate issue is whether there are any by-law breaches which is a matter for the body corporate to enforce against the tenant and would explain the form 11. The committee would need further evidence of the smoking in strata to enforce the by-laws but the committee wouldn’t be in a position to enforce the rental agreement.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #251.

Have a question about smoking in strata in Queensland or something to add to the article? Leave a comment below.

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