Smoking is a very contentious activity in apartment buildings and the issue can cut to the heart of the challenges of community living wherein people’s rights must be balanced against others and the community as a whole.
It’s an issue that can divide neighbours and leave committee members overwhelmed.
The nature of strata schemes revolves around higher density living with more people occupying a smaller space. Subsequently, impacts such as second-hand smoke or smoke drift that are more manageable in stand-alone housing becomes more of an issue in a confined area.
The following is information on options available to Queensland strata communities to regulate smoking within their schemes.
Can we make a by-law to stop people smoking?
In short, no.
A by-law in Queensland community titles schemes cannot validly ban smoking completely: a by-law can regulate but cannot prohibit an activity
While there may be very strong objections to smoking, the fact remains it is legal to smoke in Queensland and therefore any by-law that ‘bans’ smoking will be open to challenge.
No ruling from an Adjudicator in QLD has supported the restriction of smoking within a lot by a body corporate.
How to address smoking in your body corporate?
As in any strata dispute, honest and friendly communication should be the first port of call.
Take the standard scenario of a neighbour smoking on their balcony. It is possible they may not be aware their cigarette smoke drifts from their balcony into your space.
The first step is to communicate. Explain to them the impact their cigarette smoke is having. See if an amicable agreement can be reached.
Smoking in individual lots
Section 180(3) of the Body Corporate and Community Management Act provides that “if a lot may lawfully be used for residential purposes, the by-laws cannot restrict the type of residential use”.
So, while the idea of cigarette smoking may be distasteful to some, it would not generally be possible for a body corporate to prohibit, or even restrict, smoking, in a lot.
Smoking on Common Property
The body corporate is able to regulate activity on common property with appropriate by-laws.
Remember that a by-law can regulate but cannot prohibit an activity so any by-law completely prohibiting smoking on common property may be open to challenge.
In Queensland, it may be possible to restrict smoking on common property through a by-law if it can be demonstrated objectively that the smoke causes a nuisance or hazard or interferes with the use or enjoyment of another lot included in the scheme or common property.
Demonstrating the nuisance or unreasonable interference must be done objectively so what is not relevant is any subjective interference, but whether, objectively, the person causes a nuisance or hazard.
Your body corporate may also want to erect signs and notices restricting smoking in common areas, or to designate other areas of common property where smoking may be permitted.
Remember that signage cannot replace a by-law and that any enforceable rules must be included in the registered by-laws.
By-laws that re-state the Tobacco and Other Smoking Products Act
A by-law can re-state the ban on smoking in common areas set out in the Tobacco and Other Smoking Products Act:
- A person must not smoke in enclosed common areas.
- A common area, for the purposes of this smoking ban, means an area accessible to all, or a specified class of, residents of, or persons employed at, the community titles scheme.
- An enclosed common area, for the purposes of this smoking ban, has a ceiling or roof and, except for doors and passageways, is completely or substantially enclosed, whether permanently or temporarily.
If the community titles scheme has children’s play equipment that could be regarded as ordinarily open to the public, a by-law can reinforce the relevant ban in the Tobacco and Other Smoking Products Act: “A person must not smoke within 10m of any part of children’s playground equipment”
Smoking nuisance by-law
A body corporate can pass a smoking nuisance by-law in terms that are consistent with the general nuisance provision of the Body Corporate and Community Management Act.
As stated previously, demonstrating the nuisance or unreasonable interference must be done objectively so what is not relevant is any subjective interference,
The occupier of a lot included in a community titles scheme must not smoke a tobacco product, or permit the smoking of a tobacco product, on the lot or the common property in a way that—
(a) causes a nuisance or hazard; or
(b)interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.
This will not ban smoking, but residents will understand that their smoking may cause a nuisance and to be more aware about how smoke-drift affects their neighbour and may be considered as an unreasonable interference.
Besides following the general nuisance provision of the Body Corporate and Community Management Act or re-stating the relevant sections of the Tobacco and Other Smoking Products Act, a by-law regulating smoking is unlikely to withstand challenge.
What constitutes a “nuisance”
The legal concept of “nuisance” when it relates to secondhand smoke is ill defined.
In one Queensland case, a man wanted to stop smoke infiltrating his bedroom from his neighbour’s balcony.
Nuisance could only be established if the smoke was of such volume or frequency that it was an unreasonable interference.
Although the tribunal accepted that smoke often entered his bedroom, he was found to have an “abnormal sensitivity” and thus was subjectively affected by the smoke-drift.
Other Barriers to Smoking By-Laws
- awareness is low
- the procedure is complex and time-consuming
- legal advice may be needed to draft a smoking bylaw that is valid and enforceable.
What about Vaping & E-Cigarettes?
Vaping pens and electronic cigarettes are smoking products and subject to the same laws in place for tobacco cigarettes and are treated the same in relation to strata schemes.
Through their property manager, owners can specify that a tenant cannot smoke in their unit. Many management rights companies completely ban smoking in the units they manage.
However, this is not a body corporate issue. If a tenant does smoke, they will be breaching their rental agreement not one the body corporate’s by-laws.
What is reasonable?
The central principle of body corporate law is acting reasonably.
By-laws cannot be unreasonable, and owners and occupiers cannot interfere unreasonably with other owners and occupiers.
A Body Corporate cannot simply ban smoking in a scheme altogether and owners and occupiers cannot just smoke wherever they please.
It requires the finding of a middle ground of sensible smoking regulations that balance personal freedoms and community health interests.