Smoking in Strata: An update

In a win for those who suffer from smoke drift, the NSW Civil and Administrative Tribunal (NCAT) has handed down its first (reported) decision on smoke drift and nuisance since the commencement of the Strata Schemes Management Act 2015 on 30 November 2016.

As a brief refresher, in Bill Sheath and Rhonda Sheath v Rick Whitely and Sandra Whitely [2014] NSWCATCD  which was heard under the previous legislation, NCAT found that smoking is a hazard as it risked exacerbating respiratory symptoms and under section 117 of the 1996 Act that causing a hazard to occupants of other lots was prohibited. However, it continued to be difficult to enforce smoke drift.

Section 153 of the current Act offered additional protection in that noted that smoke drift could constitute a nuisance. The relevant part of section 153 states:

“(1) An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not:

(a) use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or

Note

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.”

In the case of Gisks v The Owners – Strata Plan No 6743; The Owners – Strata Plan No 6743 v Gisks [2019] NSWCATCD 44 (28 May 2019), the NCAT considered whether smoke drifting from the internal area of one lot across the common property air space and into another lot was a nuisance under section 25 of the current Act. In this decision the NCAT found that the smoke drift from one lot into another lot was a hazard for the same reasons as in the Bill Sheath decision and that the smoke drift was a nuisance as is “an interference with the lot owner’s use and enjoyment of their lot which is substantial and unreasonable”. Orders were make preventing the lot owner from smoking on her balcony and requiring her to close windows when smoking indoors. We note the lot owner’s evidence was that she had tried to shut windows when smoking.

Of note for owners corporations is the fact that Mr Gisk had been complaining for a period of two years which was considered evidence that the complaint was not trivial or lacked seriousness yet the strata committee had not acted due to its belief this was a private issue between lot owners. The NCAT did not make orders against the owners corporation as there was no evidence of a by-law that prohibited smoking in the scheme and the owners corporation was not responsible for enforcing section 153. It was noted however that the owners corporation should change its views that smoke drift was a private issue and that smoke drift or smoke penetration was not a hazard or a nuisance.

What does this decision mean for owners corporations?

If there is a complaint about smoke drift the owners corporation should note smoke drift is a nuisance and investigate. If there is sufficient evidence the owners corporation should advise the relevant lot owner of the decision in Gisks and consider taking action under either section 153 or, if there is a no smoking by-law, seeking to enforce that by-law.

While at least one article on this case that I have seen stated that the owners corporation may have been liable to pay compensation to the lot owner for its failure, unlike under section 106 of the current Act which does provide for compensation to lot owners, section 153 of the current Act does not. Secondly, a general power under the current Act to award compensation to lot owners has not currently been established. Thirdly, the Gisks decision notes smoke drift is akin to private nuisance and while this may give rise to a private common law duty in nuisance this has not been established and further any nuisance would have to be adopted by the owners corporation.

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