…our strata manager …advised that even though the external parameter of the balcony is common property, the airspace isn’t; and as such the lot owner is free to smoke out there regardless of how it impacts other residents.
Your strata manager needs to go back to strata school. Balcony common property is treated slightly differently from other common property such as hallways, in view of the fact that what goes on there generally only affect the people living in the unit. But of course the air space is common property.
So a by-law that said no smoking on common property – which most schemes have – wouldn’t necessarily apply to balconies.
However, you can pass by-laws controlling the use of balconies, from the colour and construction of furniture, to blinds or awnings, whether or not barbecues are allowed and the drying of laundry. In short, anything that can be seen from outside or affects other residents can be controlled by by-laws … including smoking.
As you will see from the extract (above) from section 153 regarding nuisance, smoke penetration from another unit – yes, even inside the unit – or balcony can be regarded as a nuisance and is therefore against strata law (never mind by-laws).
How do you deal with it?
As Flame Tree suggests, try a polite note asking your neighbour to smoke in a part of her balcony so that the fumes don’t drift into yours (which may change as wind direction changes).
If they respond negatively – “I know my rights” etc etc – point out that they are in breach of the Act and get your committee to tell your strata manager (or someone in their office who knows what they’re doing) to send them a letter quoting Section 153 and informing them that affected residents would be able to seek orders at NCAT requiring them to do whatever it takes to remove the source of the nuisance – in this case, smoking.
Ignoring NCAT orders can lead to hefty fines.
At the same time you could propose to your next AGM that your scheme creates a “safe smoking” area for residents which is permitted under the Act provided the smoke from it doesn’t drift into common property or apartments.
Once you have that in place, you could think about creating a no-smoking on balconies by-law (although you could do that without having a designated smoking area).
But just in case anyone thinks Section 153 is a “silver bullet” have a look at this case where a couple who had been ordered to stop smoking on their balcony won an appeal against the order because insufficient evidence was offered. Also, there was no by-law in place, despite the government giving strata schemes every encouragement to create no-smoking by-laws.
It’s an interesting read. It establishes tha smoke drift is a “nuisance” in legal terms and that by-laws would have been valid. But the way it was presented in the first place, the case was flawed. So maybe a carefully worded by-law may be the best next step.