NEW SMOKING PROHIBITIONS IN BODY CORPORATES
At present, Body Corporates (BC’s) are covered by the general anti-smoking regulations that state that no one can smoke within 4 meters of any pedestrian public entrance point and nowhere inside the unit if it is a place of business. Beyond those restrictions however, there was not, until now, any restrictions to stop smokers either lighting up anywhere else on common property or inside the walls of their own personal residential unit.
In a recent decision from the NSW Civil Administration Tribunal (see The Owners – Strata Plan 6743 v Gisks  NSWCATCD 44) the Court has ruled that a neighbour who smoked inside her own lot was producing second-hand smoke that was a hazard and a nuisance. The tribunal ordered that the lot owner was not permitted to smoke on the balcony or in the bedrooms (given the proximity of these locations to the neighbouring lot) and needed to close all exterior doors and windows to the bedroom and bathroom when smoking in her lot.
Although the Gisks decision was handed down under NSW law, the Queensland equivalent Body Corporate Community and Management (BCCM) Act 1997 contains similar powers to the NSW legislation in that a Qld Adjudicator has the power* to make orders that prevent a lot owner from causing a nuisance to another and so, if by chance a similar situation arose in a Queensland BC, we now have a form of legal precedent to follow. It is unclear whether this decision now makes it legal for a BC to pass a by-law that restricts smoking practices inside individual owner’s units but with the backing of the Gisks decision, this too may be possible.
Despite the decision though, there will still be the inevitable challenges of actually proving that smoking is occurring in a way that is creating a second-hand passive smoke hazard and then the ongoing problem of policing and enforcing any non-smoking order/by-law if a Qld Adjudicator or a BC is prepared to make one.
In regards to enforcing any non-smoking order, the Qld law does have some teeth. Under s288 of the BCCM Act, any failure to comply with an Adjudicator’s order is a criminal offence and a fine of up to $52,000.00 can be imposed.
*(see s167 and 276 BCCM Act)
Michael Zande is the Principal of Zande Law Solicitors, with 25 years’ experience in practice. Michael and his team have had extensive experience in conveyancing matters. Please feel free to review our firm and staff profiles at www.zandelaw.com.au
The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.