Smoke drift that impacts residents’ enjoyment of their apartments is in the news again.
The Sydney Morning Herald reported that, “Brenton Pittman and Lynette Cartwright from Kingscliff in northern NSW won in the NSW Civil and Administrative Tribunal after complaining of persistent tobacco smoke drift from the apartment immediately below theirs.”
“Pittman said the case dragged on for more than a year and involved an initial hearing, which they won, an appeal they lost, and a final hearing with lawyers where they prevailed.”
The Cartwright couple are advocating for legislation that prohibits smoking on balconies because of their ordeal.
There is no doubt of the health risks associated with inhaling second hand cigarette smoke. Passive smoking can increase the risk of lung cancer and heart disease. And beyond the health concerns, many non-smokers don’t appreciate the smell of second-hand smoke.
There are laws that acknowledge that smoking may cause nuisance or hazard to another person. Introduced in 2016 as part of the Strata Schemes Management Regulation, strata schemes have the option of choosing between two model by-laws that regulate smoke drift. If neither option A or B is selected, then option A will apply.
Here are the options.
Option A
(1) An owner or occupier, and any invitee of the owner or occupier, must not smoke tobacco or any other substance on the common property.
(2) An owner or occupier of a lot must ensure that smoke caused by the smoking of tobacco or any other substance by the owner or occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot.
Option B
(1) An owner or occupier of a lot, and any invitee of the owner or occupier, must not smoke tobacco or any other substance on the common property, except: (a) in an area designated as a smoking area by the owners corporation, or (b) with the written approval of the owners corporation.
(2) A person who is permitted under this by-law to smoke tobacco or any other substance on common property must ensure that the smoke does not penetrate to any other lot.
(3) An owner or occupier of a lot must ensure that smoke caused by the smoking of tobacco or any other substance by the owner or occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot.
If smoke drift impacts the enjoyment of your apartment, here are our recommended steps.
The first step is to speak calmly and rationally to the smoker about the issue. Most of the time, the resident will be only 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. If required, you can argue your case before the NSW Civil and Administrative Tribunal, as the Cartwright’s did.
If you have any further questions about smoke drift, contact your Strata Manager at Netstrata.
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