In November 2013, the NSW Fair Trading Minister Anthony Roberts flagged the potential introduction new smoking-specific by-laws. Under the proposal, tenants who repeatedly ignored complaints regarding cigarette smoke could be issued with a “notice to comply.” If the offender continued to disregard the request, the matter could be heard by the Consumer, Trader and Tenancy Tribunal, which has the power to issue a fine.
The debate to prohibit smoking within strata schemes is an emotional one. As we are all aware, cigarette smoke has the propensity to drift through buildings and therefore affect the health of others. Passive smoking can increase the risk of lung cancer and heart disease.
There are no statutory laws that prevent strata members from smoking in their own apartment. There are, however, laws prohibiting smoking on common property and this may extend to smoke drifting over common property and into private lots. The Smoke-Free Environment Act 2000 has the relevant clause. Section 6 states, “Every enclosed public place is a “smoke-free area” for the purposes of this Act.”
The NSW Department of Health issued a brochure explaining the implications of the law. The key requirements include, “a person cannot smoke in a smoke-free area, an occupier must not allow smoking in a smoke-free area, occupiers must prominently display No Smoking signs in smoke-free areas, all ashtrays, matches, lighters and other items used in smoking should be removed from smoke-free areas, and the ban covers the consumption of all types of cigarettes, cigars, pipes and non-tobacco smoking products.”
So where does this leave non-smokers who prefer not to become passive smokers? At this stage, cigarettes are legal and there’s no legislation that outlaws smoking on individual lots.
However, the Health Department is clear that areas that are legally not required to be smoke-free can voluntarily be made smoke-free should that be the wishes of the majority of the strata members.
In April 2011, the Owners Corporation of an apartment block in Ashfield introduced a by-law prohibiting residents and their guests from smoking inside their apartment and on the balcony. At the time, the Owners Corporation Chairman, Alex Antic told the Sydney Morning Herald, “We asked our managers if we could have a by-law to ban all smoking in units as well as on common property and two weeks later they came back with a draft of a by-law to make the building a smoke-free zone in its entirety.”
What should you do if your scheme allows smoking on individual lots and smoke drift affects the enjoyment of your apartment? We recommend the following steps.
The first step is to speak calmly and rationally to the smoker about the issue. Most of the time, the resident will only be too happy to find a solution. If you don’t feel comfortable raising the issue or if a compromise can’t be reached, the next step is to discuss the situation with the Owners Corporation. Hopefully as a collective, a resolution can be found. Residents may then argue their case at the CTTT.
The block in Ashfield has now set a precedent to ban smoking in its entirety and if a majority of strata scheme members feel passionately about the issue, you can introduce a smoke-free environment for the whole property.
If you have any further questions regarding smoke drift, contact your Strata Manager at Netstrata.
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