Smoking rules in Queensland strata schemes are likely be significantly influenced by the recent mass overhaul of New South Wales strata law.
One of these amendments covers how residents and bodies corporate can deal with smoking in strata schemes.
Residents who smoke are permitted to do so within their individual lots and the surrounding airspace. However, issues arise where smoke drifts into the airspace of other lots. This is particularly so in developments where airconditioning systems service multiple units as smoke can be internally vented into other lots.
Currently, strata communities in Queensland can only regulate smoking through non-uniform by-laws. These only come into effect on individual bodies corporate either at development or by Special Resolution at a General Meeting.
Once in place, the body corporate can enforce by-laws by issuing a Contravention Notice under the Body Corporate and Community Management Act 1997 (Qld). This notifies the resident of their breach and requests compliance with the by-law. Where a person does not comply with a Contravention Notice, the Body Corporate can take the matter to the Queensland Civil and Administrative Tribunal. The resident in breach can be issued a maximum fine of $2200.
By contrast the Strata Schemes Management Bill 2015 (NSW) has several significant differences to Queensland law. The bill firstly proposes creating a model smoking by-law for the Owners Corporation to adopt. (A Body Corporate is called an Owners Corporation in New South Wales). Significantly, the new bill specifically states that cigarette smoke drift can be classified as a nuisance or a hazard. This greatly increases the potential for smokers to be challenged over ‘smoke drift’.
Secondly, it includes a new section on the causing of ‘nuisance’. In NSW, owners cannot use their lot in a way which interferes with the enjoyment of other lots or common property. Residents will be able seek an action in the NSW Civil and Administrative Tribunal (NCAT) by arguing the actions of another owner are creating a nuisance or a hazard.
Owners corporations can now also send a letter to the offending resident notifying them of their breach, and then a notice to comply. NCAT will also be able to issue fines of $1100 for the by-law breaches and the creation of hazards or nuisances, which is double the current maximum fine. Reoccurring breaches within 12 months of the original notice can also attract fines of up to $2200.
The proposed changes in NSW are unparalleled in Australia. For this reason it is important for lot owners in Queensland to be aware of the changes and to note the potential impact upon future Queensland legislation. SSKB will ensure you are up to date with the status and effect of every detail in future changes.
SSKB will continue to educate residents and lot owners on the effects ‘smoke drift’. We are committed to helping foster a harmonious environment in strata title communities..
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 by-laws regulating smoking in your scheme, contact your Body Corporate Manager. They can outline for you the rules relevant to your individual scheme.