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When drawn to their attention does the EC have a responsibilty to ensure cigarette smoke does not drift onto common or into neighbours properties particularly as it is recognised and scientifically proven to be a health hazard? Does this responsibility come under “failure to comply with a 'safety duty-general' and 'negligent exposure to substantial risk of serious harm'?
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Excellent question. Lawyers Michael Teys and Colin Grace, I very much look forward to your responses.
In NSW the Owners Corporation in not obliged to enforce any by-laws except for those relating to maintaining the fabric of the building and common property. Pursuing smokers (or party animals or mad barbecuers) is entirely at the discretion of the Executive Committee in the first instance and ultimately the Owners Corp as a whole.
Fixing balconies, lifts and common areas, for instance, is not optional (although it effectively is until someone kicks up a stink). The reasoning is that if you have an issue with smoke or noise or whatever, there are avenues through which individual owners and tenants can pursue their case.
My own building, for instance, actively pursues anyone who installs air conditioning (except on the three floors where it is allowed) but, despite ensuring everyone else has to cool their apartments by keeping their windows open, does absolutely nothing about smokers and barbecues on balconies. Is it right? Does it make sense? No – it's strata living where the over-riding principle is all too often “I'm all right, Jack”
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I would certainly like to be able to take a stronger line on smoking within the building, but the law and its interpretation seem vague at present. I submit the following, which I included in my submission to the current review of the NSW Strata Act:
“Section 117 of the Act should be amended in a way that smoking is unequivocally defined as a 'nuisance or hazard' for its purposes. Consequent specific model by-laws should be developed to allow Strata Plans to prohibit smoking by any person in enclosed common areas — or throughout the site. There should also be a requirement that persons smoking within apartments (including on open balconies and the like) should do so only in a manner that does not create a 'nuisance or hazard', with the burden of proof (that they have not created such a 'nuisance or hazard') resting with the smokers in the event of a dispute.
Ultimately, I would like to see all strata buildings defined as smoke-free, but the community — even the non-smoking majority on my own EC — is probably not quite ready for it — yet.