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We have what I consider to be a draconian by-law which I would like to change. It relates to cooking on balconies of an 8 story apartment block (24 units) with many renters.I don’t believe it is fair with the rental market changing and renting becoming the new norm for people’s homes that people are allowed to store a BBQ on their balcony (but not the Gas bottle) but the by-law prohibits using the BBQ and cooking on their balcony.I am unsure if there are any safety reasons that would make this a sensible by-law and would welcome any information you can provide.
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As someone who has been battling balcony barbecues for the past 20-odd years, my question would be, is it fair to subject your upstairs neighbours to the smoke and smell from burning meat?
However, taking a neutral stance, it may be possible to keep everyone happy, provided you can persuade the meat incinerators to behave with a little consideration for the people living above and around them.
With that in mind, you could suggest a by-law that allows barbecue use subject to conditions. It might read something like:
Residents may not use barbecues on their balconies without the written permission of the strata committee. That permission would be subject to the following conditions:
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- The barbecue must be gas or electrically powered. Solid fuel barbecues are not permitted. Residents must make their barbecue available for inspection.
- The barbecue must not be cleaned by “burning off” the remnants of previous use.
- The barbecue must be cleaned between uses.
- Pungent foods such as seafood and unwrapped fish may not be cooked on the barbecue.
- The barbecue must not produce excessive smoke or smell.
- The resident must have a fire extinguisher or fire blanket available for emergencies.
- Permission may be withdrawn following any complaints from other residents about nuisance smoke or smell from the barbecue.
That would seem like a reasonable by-law to me – but I would probably still vote against it because people who are inconsiderate of their neighbours usually don’t read by-laws anyway.
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There are real problems for OC’s that attempt to regulate what residents / owners do within their own lots.
It is the EFFECTS of resident activity that should be regulated, rather than resident ACTIVITY. eg a By-law controlling smoke (or smell) drift from balconies rather than banning barbecues. That’s why we can have a By-law controlling the behaviour of pets, but not their existence / keeping etc.
In addition a by-law control could also be warranted on safety grounds. If gas bottles are banned, the case has to be made that they represent a hazard and, if charging e-scooters within apartments is to be banned, the safety case has to be made likewise. There would seem to be a prima facie case for both. Safety is after all just minimising the risk of those impacts on other residents that would properly be afforded by-law protection.
I can’t help but feel that making the argument for banning the use of barbecues to reduce the risk of smell / smoke drift would be too long a bow to draw.
I can’t help but feel that making the argument for banning the use of barbecues to reduce the risk of smell / smoke drift would be too long a bow to draw.
Maybe, but the OP wants to rescind the ban on barbies, not create one.
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Based on the “Cooper” and “Pittman v Newport” cases, this by-law has a high probability of being invalid. There is scientific evidence that tobacco smoke, breathed passively, and on an ongoing basis is a hazard, but the same cannot be said about barbeque smoke. A resident cannot cause “a nuisance or hazard”, and in the note in Section 153 “the penetration of smoke… from smoking may cause a nuisance or hazard and may interfere unreasonably with the use or enjoyment” of other residents, depending on the circumstances it occurs. Cigarette smoking is regulated generally, due to its health hazard, but the same has not occurred for barbeque smoke. And the “Cooper” decision makes it clear that there must be a real nuisance or hazard, not just a possibility of this occurring.
What are your resources, and how seriously do you want to overturn this by-law? You could take the OC to the Tribunal to get the by-law declared to be invalid. Or you can just ignore the by-law and start up your barbeque, (hopefully in such a way as to minimise any nuisance – it, using a gas version, which is fully safety compliant, and only rarely). Then let the OC try to take you to the Tribunal… That will cost you money and time, even doing it by yourself. You will be better able to do something, if you are an owner, or if you get a group together to challenge the by-law.
If the OC is potentially amenable, then perhaps you could coooperate to investigate the by-law’s validity. Perhaps propose that the OC should get a strata lawyer’s or a barrister’s opinion on its validity, and to abide by the decision, which should not be too expensive, and with the OC might fund itself?
I think that if you can put a convincing argument to the strata committee that their blanket barbecue ban would probably not pass a serious test at NCAT, and they might end up with a free-for-all, they might listen to a proposal to control barbecue use rather than ban it completely or allow it without restrictions.
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In the ACT at least, the default rule includes annoyance. Annoyance can include things without proven harm. The annoyance has to be ‘substantial annoyance’, not some trivial annoyance. I would argue that a smoky BBQ used often could amount to a ‘substantial annoyance’ but a BBQ used only infrequently could be a minor annoyance that should be tolerated.
Use of unit—nuisance or annoyance
- A unit owner must not use the unit, or permit it to be used, in a way that causes a nuisance or substantial annoyance to an owner, occupier or user of another unit.
- This rule does not apply to a use of a unit if the executive committee has given an owner, occupier or user of the unit written permission for that use.
- Permission may be given subject to stated conditions.
- Permission may be withdrawn by special resolution of the owners corporation.
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