The essential issue here is that you have a by-law that has been breached. As the former Fair Trading minister Victor Dominello told me himself, owners corporations don’t get to pick and choose which by-laws they enforce. If they don’t like their by-laws, then they should ask 75 per cent of owners to agree to change them. Otherwise, they should just get on with it.
Now, your by-law is quite clear and it doesn’t mention the amount of smoke, the frequency of the drift or the effects – so you are right to complain.
In your shoes, I would show the committee and the strata manager section 232 of the Act (extract below) and tell them that if they don’t enforce it, you will take them to NCAT for no other reason than you have a better chance of getting costs in a case against them – and then they will have to pursue the smoker anyway.
This is not a dispute between two residents. It’s a by-law breach and if the committee and strata manager aren’t prepred to do their jobs, they should quit.
(1) Orders relating to complaints and disputes
The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following—
(a) the operation, administration or management of a strata scheme under this Act,
(e) an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme,
(2) Failure to exercise a function
For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if—
(a) it decides not to exercise the function, or
(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.
So that’s your process. Warn them that if they do nothing, you will do something, so they might as well get on with it.
And don’t give up on strata – it’s a great way to live once you get the dickheads back in ther boxes.