Most body corporate developments have lots (apartments, townhouses etc) in close proximity. When one neighbour smokes, often their surrounding neighbours know about it.
Most smoking complaints relate to the smoke-drift into surrounding lots and common property areas – either across the balcony or back yard, or under the apartment front door into the hallway.
These complaints are quite simple, however the body corporate previously did not have a strong enforcement power to resolve this dispute.
No – the decision has no immediate effect beyond that specific case. What it does do however, is establish a precedent that your body corporate may follow if it is faced with similar smoking complaints.
Bodies corporate still cannot ban smoking in a person’s lot. The smoking itself is not the issue– it is the smoke-drift to other lots which creates a hazard and can be relied on as the reason to curtail the smoking.
If your body corporate is dealing with a smoking issue, instead of progressing a nuisance argument, the committee may now progress a hazard argument, instead of nuisance, which is likely to now be more successful.
A successful smoking by-law enforcement relies on a good by-law in the body corporate’s community management statement (CMS). The by-laws are prepared by the original developer’s solicitor, however the body corporate may change them by a special resolution (two-thirds vote) of owners.
If your community is dealing with smoking hazard complaints by residents, the first step will be to assess whether your body corporate by-laws are adequate to control that issue, and to take advantage of this new adjudication ruling. Your BCsystems Strata Manager can assist you with reviewing your scheme’s smoking by-law and assisting if that by-law should be modernised to the 2022 standard.
The decision focuses only on the issue of smoke-drift from tobacco products (e.g. cigarettes, e-cigarettes, vapes).
The hazard element of smoking is fundamental to this decision, so it is not likely that this decision will impact other types of nuisances which do not have a similar health hazard effect. For example, occasional dog barking might be annoying, but it is not a health hazard.