A CTS is usually a multi-storey development containing lots (residences).
Whether an occupier or guest can smoke or vape in a CTS is governed overall by the Body Corporate and Community Management Act (BCCM Act).
Body Corporate Bylaws (“Bylaws”) are mandatory under the Act and usually prevent smoking or vaping with the exception of that activity conducted inside the smoker/vaper’s lot. This is because there appears to be concern in some quarters as to whether a Body Corporate has the power to introduce a Bylaw that prevents smoking inside a lot. Notwithstanding, some Body Corporates do not agree with this and have Bylaws banning smoking anywhere within their CTS.
In circumstances where there is no ban on smoking or vaping inside lots of a CTS, and a smoker/vaper’s secondary smoke/vaper is escaping his/her lot and being inhaled by other occupiers of lots in the CTS, what are the rights of those other lot owners to have the offending smoker or vaper user cease and desist smoking and vaping inside his/her lot?
These rights are governed by:
- The Bylaws themselves, which are administered by the elected Committee of the Body Corporate; and
- Section 167 of the BCCM Act, headed “Nuisances”, which recently became law.
Bylaws usually contain provisions making it a breach of them for an occupier/s or invitee/s of a lot to:
- behave in a manner likely to interfere with the peaceful enjoyment of other occupiers;
- behave in a way likely to unreasonably interfere with the peaceful enjoyment of others;
- use their lot for any purpose that may cause a nuisance or a hazard.
Pronunciations of the State and Federal Health Departments and the Cancel Council are that second- hand smoke can harm a person, even if a person is exposed to it for just a moment and that passive smoking is related to many adverse health effects.
As such, where second hand smoke or vape escapes from a smokers/vapers lot and is inhaled by another lot owner within his/her lot, the inhalation is clearly a health hazard and goes further than being “likely to unreasonably interfere” with the peaceful enjoyment by the non- smoker/vaper of his/her Lot: it actually does unreasonably interfere with the nonsmoker/vaper’s peaceful enjoyment of his/her lot, in that it creates a health hazard which is also a nuisance.
Under the BCCM Act, a Body Corporate (and its Management Committee) has a duty to act reasonably in determining whether there has been a breach of a Bylaw. Any Body Corporate that did not find that any instance of smoke or vape escaping from one lot into another lot was not an unreasonable interference creating a health hazard which was also a nuisance, would be acting in breach of its duty to act reasonably.
As such, the Body Corporate would be obliged to enforce the Bylaw against the offending party.
Section 167
This section stipulates that a lot owner or their guest must not cause a nuisance or hazard by smoking. They will breach this section if they cause a nuisance or hazard by:
- regularly using a smoking product on their lot or the common property of the CTS; and
- regularly expose an occupier of another lot or their guest, or a person who is lawfully on the common property, to the smoke or emission from the smoking product either in their lot or on the common property.
It is difficult to understand why Section 167 makes it an offence to create smoke and vape only if this is done regularly, when the Health Departments of State and Federal Governments publicly state that no amount of inhaled secondary cigarette smoke or vape is healthy and should not be engaged in, even for a short period. Further “regular” is not defined in the Act.
Clearly legislative change is needed.
Enforcement of Rights to have a lot owner stop smoking.
Step 1: Gather Evidence
Firstly, the applicant must prove the substance of his/her complaint, by recording and measuring the instances of, and the amount of, the intrusion of secondary smoke and vape into his/her lot at various points. There are many high-integrity and technologically advanced smoke and vape measuring devices available for purchase and which can be used to gather the required evidence.
Secondly, if possible, the applicant should substantiate the measurements taken with the written opinion of a wind engineer about the characteristics of the airflows around the building or buildings comprising the CTS and how these can cause or exacerbate the ‘hazardous and nuisance’ escape of smoke or vape from the respondent’s lot to the detriment of the applicant.
Thirdly, an applicant should collate the pronouncements of Federal and State Departments of Health and the Cancer Council, which state that inhalation of secondary smoke or vape is a health hazard and that no amount of inhalation of secondary smoke and vape is healthy. If the activity is a health hazard, then it is a nuisance also. These organisations definitively state that even a small amount or such inhalation can create adverse health effects for humans.
Step 2:
Conciliation
Once an applicant gathers the above evidence (and any other evidence that might be relevant), he/she should try to conciliate a beneficial outcome with the respondent. The Act requires this.
Conciliation usually involves each side achieving an outcome where each has “given” a little to achieve a mutually beneficial outcome.
It is hard to see how there should be a conciliated outcome with any “give” by the applicant to the respondent in circumstances where State and Federal Departments of Health publicise that secondary smoke should not be inhaled for even a short time. Further, to avoid the offensive conduct of a respondent, no applicant should be expected to close their windows and doors and not enjoy the fresh, clean air in and around their CTS.
Rather, a clearly reasonable conciliated outcome should be for the respondent/s to undertake that they will change their smoking/vaping behaviour and not smoke in their residence, instead going to areas outside the CTS, for example, an adjacent footpath, like would be the case if they occupied or worked in a commercial building.
Where Conciliation has failed
Where Conciliation has failed, a lot owner (“the applicant”) wishing to enforce his/her rights to have an offending lot owner cease smoking or vaping inside his/her lot (“the respondent”) commences the enforcement process by way of an application to the Body Corporate citing a breach of the Bylaws by the respondent and requesting the Body Corporate to take appropriate action to enforce the Bylaws against the respondent.
Where the offending conduct is “regular” Section 167 should also be cited. However, the conduct does not have to be “regular” to be a breach of the Bylaws. Given the health hazards of inhaling the smoke and vaper, merely occasional smoking/vaping conduct should be all that is required to justify a complaint that a lot owner is breaching the Bylaws by inflicting on the applicant an unreasonable interference creating a health hazard which is also a nuisance.
If the Body Corporate does not enforce the Bylaws, the applicant has a right to request the Office of the Body Corporate and Community Management to do so.
Notwithstanding the serious health hazard that inhalation of secondary smoke and vape causes, there appears to be no complementary urgency for achieving a satisfactory resolution of an applicant’s application which, in my view, should be immediate.
Clearly legislative change is needed.
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