This is part two of my blog regarding smoking in strata schemes after the commencement of the Strata Schemes Management Act 2015 (NSW) (the 2015 Act) on 30 November 2016.

Smoking & Nuisance

The draft regulations to be introduced as part of the NSW strata law reform package include proposed model by-law 9. Both the proposed model by-law 9 and current model by-law 8 take into account section 117 of the Strata Schemes Management Act 1996 (the 1996 Act) and section 153 of the 2015 Act.

These sections provide that an owner or occupier of a lot must not cause a lot to be used in a way or for a purpose that would create a nuisance or a hazard to the occupier of another lot or interfere unreasonably with the use and enjoyment by an occupier of a lot of either the common property or their lot.

What is “nuisance”? Very simply “nuisance” is a legal term. It means an unreasonable and substantial interference that materially affects the use or enjoyment by a person of their land. Water overflowing from dams, noise, fumes, vibrations and even tree roots entering into pipes on another person’s land can all, in the right circumstances, constitute a nuisance.

The key difference between the 1996 Act and the 2015 Act is a note which states that:

“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.”

 On one hand this is good as it explicitly recognises that smoke drift can constitute a nuisance however on the other hand:

•  it is only a note and section 7 of the 2015 Act means that notes included in the 2015 Act do not form part of the 2015 Act; and
• it doesn’t do much more than restate the existing common law position that a substantial interference with the rights of a property owner (which could include smoke drift) can constitute a nuisance.

The 2015 Act does not explicitly state that smoke drift is a nuisance. The note, which is not part of the 201 Act, only goes so far as to state it may cause a nuisance. As such, lot owners are in much the same position they were before,  that is, it will still be up to the lot owner (or owners corporation) to prove that the smoke drift from a lot materially or substantially interferes with their use or enjoyment of their lot or the common property.

Unfortunately, the opportunity to strengthen laws preventing smoke drift in strata schemes was not taken.