We have no idea how we haven\u2019t written about this issue before but in terms of frequently asked questions in strata this is one of the biggies.<\/p>\n
If you were a smoker you couldn\u2019t help but feel a little threatened (and perhaps rather heavily taxed) given the range of legislated rules<\/a> around smoking.\u00a0 Smoking has now been banned in aged care facilities <\/a>and one of the recent state government discussion papers on strata title laws specifically asked for comment about smoking<\/a> in strata title schemes.<\/p>\n And before anyone asks, no, we haven\u2019t seen draft legislation or feedback from the government in relation to any of the last four discussion papers.\u00a0 We hope no-one is holding their breath waiting for legislative reform.<\/p>\n If you want to know the rules about smoking in (Queensland), strata read on.<\/p>\n Section 167 of the Body Corporate and Community Management Act 1997<\/em><\/a> (Qld) (BCCMA<\/strong>) provides:<\/p>\n \u201cThe occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that\u2014<\/p>\n (a) causes a nuisance or hazard; or<\/em><\/p>\n (b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or<\/em><\/p>\n (c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.\u201d<\/em><\/p>\n This provision sets the standard which was considered in some detail in Norbury v Hogan<\/em>[2010] QCATA 27<\/a>.<\/p>\n This case considered the situation where one lot occupier was smoking in their lot and the smoke generated then travelled into other lots.<\/p>\n This decision has been subsequently followed in many adjudicators\u2019 orders and is the (Winfield<\/strong>) gold standard on this issue, having been applied in a large number of adjudications.\u00a0 The President provided from paragraph 26 (our emphasis):<\/p>\n \u201cAlthough it is unsurprising that the adjudicator found that the cigarette smoke emanating from Lot 2 is subjectively interfering with Mr Hogan\u2019s use and enjoyment of his Lot, the correct test for determining what is unreasonable is an objective one..<\/em><\/u><\/p>\n \u2026<\/p>\n Once that is acknowledged, a finding that s 167 is offended could only be made, in the circumstances arising here, if it was established that the cigarette smoke emanating from Lot 2 is of such volume or frequency that it would interfere unreasonably with the life of another lot owner of ordinary sensitivity<\/u><\/em>.<\/p>\n \u2026<\/p>\n For the reasons already explored, the test under s 167 is objective and is to be measured against the needs and circumstances of a neighbour of ordinary sensitivity; it is not subjective<\/em><\/u>, reflecting Mr Hogan\u2019s particular circumstance of sensitivity. That was, also, the test correctly applied in the earlier decisions to which the learned adjudicator referred.\u201d<\/p>\n Accordingly, what needs to be shown is that \u2018the interference from the noise transference is, objectively, one that would interfere unreasonably<\/em><\/u> with the life of another lot owner of ordinary sensitivity<\/em><\/u>.\u2019<\/p>\n Demonstrating the nuisance or unreasonable interference must be done objectively in order to substantiate a contravention of section 167 of the BCCMA. What is not relevant is any subjective interference, but whether, objectively<\/u>, the person causes a nuisance or hazard.<\/p>\n We have previously written articles around the prohibition on oppressive or unreasonable by-laws<\/a>, the most common invalid by-laws<\/a> and the difference between prohibitory and regulatory by-laws<\/a>.<\/p>\n It is important to remember that by-laws cannot regulate the use of scheme land further than what the BCCMA\u00a0does. Adjudicators have previously held that a by-law could only regulate smoking on common property such that it is not inconsistent with the standard in the BCCMA.<\/p>\n Accordingly, smoking on common property could only be restricted if it unreasonably interfered with the enjoyment of another lot or the common property.<\/p>\nWhat about no-smoking by-laws?<\/h3>\n