I don’t think you need a by-law.
Section 153 of the Act specifies cigarette smoke as a potential nuisance.
153 Owners, occupiers and other persons not to create nuisance
(1) An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not—
(a) use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
(b) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or
(c) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.
Note: Depending on the circumstances in which it occurs, the penetration of smoke from smoking into a lot or common property may cause a nuisance or hazard and may interfere unreasonably with the use or enjoyment of the common property or another lot.
Section (a) covers people smoking on their lot, sections (b) and (c) would cover people smoking on common property.
It seems to me that your majority could hold a committee meeting to agree to initiate proceedings at Fair Trading (which is free) then go to mediation and then, if need be, press for orders at NCAT.
But bear in mind that some smokers can be among the most selfish and antisocial people you will ever meet. So don’t expect to prevail without a fight.
Have a look at
this blogpost from last year, where two smokers in a block tried every nasty, bullying tactic to avoid having to stop smoking on their balcony, despite evidence that their smoking (and probably the stress) was exacerbating their neighbour’s asthma.
The good news is that they eventually lost, but this will give you an idea of the lengths they went to, trying to show that they were the victims.
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