You may have heard sensationalist reports about how smoking has been ‘banned’ in a body corporate, or that a certain decision has been a “game-changer”.
The truth is that smoking has not been banned. Nothing ground-breaking has occurred. What happened is that an order was made preventing a person from causing a nuisance to another with their smoke. This is based on law that is over 150 years old, so it is hardly news. So, what does it mean for smoking in a body corporate?
The decision referred to is Artique [2021] QBCCMCmr 596 which involved a body corporate on the Gold Coast. The applicant owned a lot on the 9th floor, which was located above that of the respondent who owned a lot on the 8th floor. The respondent was chain-smoking multiple times per hour on her balcony. This smoke was of such a level that it drifted upwards and bathed the applicant’s balcony in second-hand smoke. She had no access to fresh air unless she stayed locked inside her apart. The respondent was ordered to not smoke on the balcony but could do so in her home if it didn’t cause a nuisance to others.
So why has this garnered so much attention? In the past, adjudicators have been reluctant to make orders that affect the lawful use of property. A unit in a community titles scheme is no different to a detached house: if it is your property, you’re entitled to use it in any lawful way, and by-laws shouldn’t interfere with that. However, there may come a point where that lawful use becomes unlawful. This is when it unreasonably interferes with the lawful use of someone else’s property. This is the law of nuisance, which is over 150 years old.
Take music as an example. A neighbour might be annoying, but when living with neighbours, especially in community living, some degree of live and let live is required. Annoyance is not nuisance. But what if the bass starts thumping at midnight through your walls? What if your neighbour sets up their Hi-Fi system and blasts music directly into your windows, preventing you from sleeping?
These would constitute a nuisance. Likewise, the occasional waft of smoke, whilst annoying, is not an actionable nuisance. But if a person’s smoking bathes your balcony in smoke, and you can’t even use your own property without being required to breathe in second-hand smoke? That’s a nuisance.
And that is why this decision was made. It’s not the case that someone just decided to have a smoke at home – someone was smoking so much that their neighbour couldn’t use their property fully without breathing in hazardous second-hand smoke. The body corporate’s by-laws required people to not smoke in a way that caused a nuisance. Section 167 of the BCCM Act also generally requires people to not use scheme land in a way that causes a nuisance.
A body corporate cannot outright ban smoking with its by-laws. That would not only be unreasonable, but would be unlawful, as it would prohibit a reasonable use of someone’s property. What a body corporate can do, however, is word its smoking by-laws to be directed at smoking not causing a nuisance. This is how the by-laws were worded in Artique.
It requires a nuanced response, and your by-laws must be drafted appropriately. The decision is certainly a good decision and is a step in the right direction, but smoking can never be outright banned. Headlines stating that smoking is ‘banned’ are misleading.
If you are looking to review your by-laws, they must be drafted appropriately to not offend the law. Contact us today to discuss your options.
This article is intended as general information only and should not be relied upon as legal advice. For specific legal advice please contact us here.