By Mark Mellick of Active Lawyers
There is one question “lighting up” body corporate forums.
Committees are increasingly asking – Can we ban smoking?
The answer is both “yes” and “no”.
Regularly we get asked to draft a bylaw prohibiting smoking in lots, on balconies and on common property.
A bylaw can regulate but cannot prohibit an activity. This is why blanket bans on pets is invalid.
Prohibiting smoking on common property is in our view lawful as it regulates the use of common property.
In any event, it is certainly the case that smoking in enclosed common areas is banned by virtue of the Tobacco and Other Smoking Products Act.
Consequently, even in the absence of a bylaw, a body corporate may take steps to stop people smoking in enclosed common areas.
What about smoking on balconies and in lots?
On the current state of the law and given a blanket ban on smoking would likely not survive a challenge, the only option available to Bodies Corporate appears to be placing reliance on a nuisance bylaw and/or section 167 of the Act in regards Nuisances, or indeed an affected resident could commence an action in nuisance (either under the Act or perhaps in common law – if the evidence jurisdiction provisions of the Act could be overcome).
To date I am not aware of a body corporate or a resident, successfully prosecuting a nuisance case in regards smoke drift.
Will the time come when residents can be prevented from smoking on their balconies and/or in their lots.
I certainly envisage legislative amendment that will ultimately lead to smoking on balconies being banned.
I am not however convinced though that any legislative ban will extend to preventing residents smoking in their own lots.
At best we may see such act being regulated by saying placing an obligation on the resident to close windows and doors in the lot when lighting up.
The big issue with any blanket ban on smoking is balancing the rights of the individual against those of the entire body corporate community, the issue will continue to rear its head.
Mark is a specialist body corporate lawyer having practiced exclusively in the area since 1995.
For legal enquiries relating to your body corporate, Mark can be contacted at (07) 3343 7096 or Mark.Mellick@activelawyers.com.au