A recent decision of a Body Corporate and Community Management Adjudicator to order a unit occupier not to smoke on their balcony could set a precedent for other unit occupiers.
the decision
The Applicant, in this case, was a unit owner in the Artique resort in Surfers Paradise, Gold Coast. She complained that her neighbour on the floor below her was a "chain smoker" who smoked every 20 to 40 minutes for 5 minutes at a time. The Applicant complained that the smoke was "relentless and unbearable" and that she was concerned about her health.
On the other hand, the Respondent said that she could not control the direction the wind blew the tobacco smoke and made similar complaints about smoke from the Applicant's unit drifting into her unit. The Respondent also said that she had a disability which made going downstairs to smoke "out of the question".
The Adjudicator ruled in favour of the Applicant on the grounds that the Respondent's smoking was causing a hazard to the Applicant. The Respondent was ordered not to smoke on her balcony and only to smoke elsewhere within her unit if reasonable steps are taken to ensure that the smoke does not affect any other person in another unit.
why does the decision matter?
Among other things, Section 167 of the Body Corporate and Community Management Act 1997 (Qld) ('Act') provides that the occupier of a lot in a community titles scheme must not use the lot in a way that "causes a nuisance or a hazard" (our emphasis added).
Before the decision in the Artique case, unit occupiers who sought to make a successful complaint against a neighbour for smoking on a balcony had to establish that the cigarette smoke emanating from a neighbour's unit was of "such a volume or frequency that it would interfere unreasonably with the life" of the unit occupier, thereby creating a nuisance (Norbury v Hogan [2010] QCATA 27 at [28]). This is very difficult to prove, as evidenced by the numerous unsuccessful applications by unit owners making complaints against neighbouring smokers prior to the Artique case.
Indicating a shift from previous decisions on this issue, the Adjudicator found in Artique that the drifting of the Respondent's tobacco smoke into the Applicant's unit was not a "nuisance", but it was a "hazard" within the meaning of the Act. One of the reasons the Respondent's smoke drift was found to be hazardous was that the Australian Government Department of Health has advised that there is no safe level of passive smoking.
The Artique case is important because it opens the door for future complainants to rely on this decision by arguing that any exposure to smoke drift from neighbours is a 'hazard' and therefore prohibited under the Act. Rather than the previous requirement for complainants to establish a volume and frequency of smoking that creates a 'nuisance'. In this regard, the threshold to establish a breach of section 167 of the Act for smoking by neighbouring occupiers may be considerably lower as a result of this decision.
It is important to note that adjudication decisions such as the Artique decision are not binding. Different adjudicators in different cases can come to a different conclusion, even if the circumstances of the case are similar to the Artique case. While the decision may open the door for future complaints, there is no guarantee that every complaint will be successful, as a decision in each case will turn on its facts.
It will be interesting to see if the Artique decision prompts the Queensland Government to consider whether an amendment to the Act should be passed to allow Bodies Corporate the ability to enforce a "no-smoking" by-law, which completely prohibits smoking on a balcony. Bodies Corporate are currently not expressly permitted under the Act to prohibit such behaviour. As such, the Act would need to be amended to give the Body Corporate an express ability to adopt a no-smoking by-law and make the by-law enforceable.
how can we help?
Our Real Estate and Projects team is well experienced in acting for applicants and respondents in adjudications for body corporate disputes.
We can assist you with preparing and filing adjudication applications or preparing responses to adjudication applications. The Real Estate and Projects team is also experienced in preparing the documentation required to establish a Body Corporate under the Act and ensuring the relevant by-laws are included in a community management statement regulating nuisance and hazard.
If you require our assistance, please fill out the enquiry form below for an obligation-free appointment.
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