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Topic
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Under the POEO Act, a resident can seek a court-issued noise abatement order for harmful noise emitted by neighbours.
Is there a corresponding law protecting against harmful smoke? If not, is this an inconsistency in NSW legislation?
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Replies
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Infocus,
Have a look at the Smoke Free Environment Act and also s117 of the strata act.
There is some great case law on this also… Have a look at Salerno’s case.
Good luck
Infocus said:
Under the POEO Act, a resident can seek a court-issued noise abatement order for harmful noise emitted by neighbours.
Is there a corresponding law protecting against harmful smoke? If not, is this an inconsistency in NSW legislation?
What is harmful smoke? If it comes out of a wood-fire heater; is that harmful smoke? I recall when i lived in the ACT the legislature made changes to only allow certain types of wood to be burned so as to maintain a level of air quality in winter.
I live in a SP where the smell of wood fires fills the night air every winter. Half the time it smells like somebody is burning plastic logs. The smell is arguable worse than residual smoke from a fag.
I have lived in the Shire of Sydney when the National Park is on fire, the sky goes red and there is a haze of smoke. Some nights in this SP are similar to that level of smoke; it is like there is a bush fire somewhere.
What comes out some of the chimneys here is excessive. If there were to be laws against “harmful” smoke then I feel there is the odd person in my SP who will rediscover the meaning of winter chill.OK, I have been told that it’s only a matter of time before someone with the time and money takes their OC to court over smoking, using Environmental Health laws.
Meanwhile, there is this in the Strata Act:
117 Owners, occupiers and other persons not to create nuisance(1) An owner, mortgagee or covenant chargee in possession (whether in person or not), lessee or occupier of a lot must not:
(a) use or enjoy the lot, or permit the lot to be used or enjoyed, in such a manner or for such a purpose as to cause a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not).
If you can show that smoking is a “nuisance” and not just annoying, and you can persuade the Supreme Court that it merits their attention (because the CTTT won’t award costs or damages) then the legislation is there for you.
There has been a case where residents were ordered to stop smoking by a CTTT ruling (because their smoke was infiltrating neighbouring apartments) but that doesn’t carry anything like the weight of a Supreme Court precedent.
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Hi Infocus,
Although your complaint and concern regarding smoke fumes are totally valid I wonder if perhaps you have a bee in your bonnet regarding your neighbour?
As JT and the others have supplied, there are avenues of complaint before you begin looking at legislation. You must really want to stick it to your neighbour.
I live in a building where there are also commercial premises.
Laundries, nail salons, hair salons, printers. These all give off offensive chemical smells and fumes that I am sure are not condusive to good health. Mobile phones are also proving to be a precurser to certain cancers.
I have just come to the conclusion that the OTHER stuff out there is just as bad as ciggy smoke so I live and let live. One day there will be Non Smoking buildings available for non smokers to buy into.
Cheers and Good Luck
Smoke-free buildings already exist and they're spreading. But what I haven't seen yet is an ad for an apartment in a non-smoking building. Surely there's someone out there with the cojones to ingore the 17 percent of the population addicted to the dreaded weed and proclaim their clean credentials.
Or maybe it's just that once people get into a smoke-free block, they don't want to leave.
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As a non-smoker and non-bbq-er it really doesn’t affect me.
My neighbour smokes. My other neighbour bbqs. The BBQ-ing neighbour complains about the smoking neighbour.
As far as I am concerned either they both are allowed to do what they want (my preferred option) or they both aren’t allowed to do what they want. That said, the smoker is a lot more considerate than the bbq-er – when an upstairs neighbour had his sick mother to stay he posted a note saying she had emphysema, so be considerate. The smoker didn’t smoke on his balcony. The bbq-er was out there bbq-ing.
But, that is my own ramble and not really relevant. There are a whole lot of other things that can be considered offensive. A diesel vehicle can release a lot of particles into the atmosphere. Are we to ban them as well? What about mobile phone towers? My understanding of the impact of smoke drift is that is not going to harm anyone. Secondhand smoke is only an issue for long term exposure in an enclosed space. And that is why the places above ban smoking.
Anyway, as others have said, smoking and non-smoking buildings is a good outcome. I’ll chose based on the building as I don’t have an issue with it. Others do one way or the other. Let the market sort it out.
There are other issues, like safety, for instance. Here’s an extract from another website’s Q&A.
- I am the managing agent for a new high-rise apartment building. The tenants would like to barbecue on the balconies, roof decks, rear yards and courtyards. Does the Fire Code have any restrictions or prohibitions?
Yes. FC307.5 regulates the use of charcoal, piped natural gas, LPG and electric barbecues. You should refer to this section for complete requirements.
Standard “backyard-type” propane barbecues (using 20 pound LPG containers) are not allowed on balconies, roof decks, rear yards and courtyards of apartment buildings and other multiple dwellings.
All barbecues must be placed at least 10 feet from combustible material and combustible waste. This 10 foot separation requirement would apply to, among other things, any building of combustible construction, combustible building siding, combustible furnishings such as plastic or wood chairs and tables, and combustible decking. In addition, a garden hose attached to a water supply or a portable fire extinguisher must be nearby and readily available for use.
Which State has these laws? Actually, nowhere in Australia. This is based on the New York Fire Code – but, hey, what would they know about high-rise buildings?
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