The recent mass overhaul of New South Wales strata law has potentially set a major precedent for strata laws in Victoria on a number of issues.
One of these significant amendments covers how residents and Owners Corporations can deal with smoking in strata schemes.
Residents who smoke can do so on their individual lots. In strata schemes, problems arise where smoke drifts into the airspace of other lots. Air conditioning systems that serve multiple lots can create difficulties for those who smoke indoors, as it can cause smoke to be internally vented into other properties.
Owners Corporations in Victoria regulate smoking through rules. These rules are not uniform and only come into effect on individual properties either at development or by Special Resolution at a General Meeting. Once a rule is in place, the Owners Corporation has the capacity to enforce it by issuing a contravention notice in accordance with the Owners Corporation Act 2006 (Vic). Further action can then be taken against residents in breach of rules in the Victorian Civil and Administrative Tribunal. Owners breaching rules face a maximum penalty of $250 under the Owners Corporation Act 2006.
By contrast, the Strata Schemes Management Bill 2015 (NSW) has included a new section on the causing of ‘nuisance’, specifying owners and tenants cannot use or enjoy their lot in a way which interferes with the use or enjoyment of other lots or common property. Depending on the circumstances, this may include the intrusion of cigarette smoke.
Defining cigarette smoke as a nuisance or a hazard under legislation significantly increases the potential for smokers to be challenged if their smoke drifts into other lots. The NSW reforms include a proposal to create a model smoking rule for Owners Corporations to adopt. The proposed changes also mean Owners Corporations can firstly send a letter to the offending resident notifying them of their breach, and then a notice to comply with the by-law. The proposed changes permitted the NSW Civil and Administrative Tribunal to issue fines of $1100 for breaches of by-laws, doubling the current maximum fine, as well as further fines of up to $2200 for further breaches within 12 months.
The proposed changes in NSW are unparalleled in Australia. For this reason, it is important for lot owners in Victoria to be aware of the changes and to note the potential impact upon future Victorian legislation. SSKB will ensure you are up to date with the status and effect of every detail in future changes.
SSKB will continue our efforts to educate our residents and lot owners on the effects ‘smoke drift’. SSKB is committed to helping foster a harmonious environment within Owners Corporations and assisting negotiations between the affected parties to ensure all the complaints are handled efficiently.
In a recent example, SSKB helped to negotiate a compromise between a smoking resident and the Owners Corporation, in which the resident agreed to only smoke indoors, and arranged the fitting of a waterproof seal to the balcony doors to reduce cigarette smoke seepage to other residents.
If you are unsure about the rules regulating smoking in your scheme, contact your Owners Corporation Manager. They can outline for you the rules relevant to your individual scheme.