Light up! Why states won’t ban balcony smoking

The recent win by NSW apartment dwellers over their balcony smoking neighbours sent a puff of panic through strata smokers and their barbecuing brethren.

However, nicotine addicts need not have fretted over calls to ban smoking on all strata block balconies.  No state government is likely to pass strict laws that would curb resident’s “rights” to do something that might … possibly … not trouble some of their neighbours.

Stephen Brell, president of the NSW Strata Community Association (the strata managers’ and service providers’ professional organisation), even wondered if a blanket ban on all balcony smoking might lead to restrictions on barbecues and exotic cooking smells.

If so, it would be game over for the anti-smoking lobby. Despite the fact that NSW strata law defines “smoke from smoking” as a nuisance – and causing a nuisance breaches strata law – stubbing out strata chain-smokers is far from straightforward.

In fact, the long legal battle that prompted a call for a law to ban all balcony smoking should give heart to strata-dwelling nicotine addicts.

The Kingscliffe residents concerned spent more than a year fighting an action against their neighbours, during which they won their initial case, lost an appeal and finally, with legal help, had restrictions placed on their neighbours’ smoking.

It’s worth noting that the appeal by smokers against the earlier tribunal ban was allowed, partly on the grounds that the plaintiffs hadn’t provided sufficient evidence that the smoke was harmful, as well as that there was no by-law in place.

However, smoking is in decline and, it seems, increasing numbers of non-smokers are not prepared to put up with the fumes from those who do partake.

This should be of concern to investors, especially if tenants start fleeing the fumes. While apartment owner-residents may be prepared to embark on long and potentially bitter battles to be able to breath clean air in their own homes, tenants can just move to somewhere less toxic.

The real problem here is the uncertainty surrounding issues that go to tribunals. The NSW strata Act – and other states’ legislations – are clearly designed to protect innocent owners from having their right to the peaceful enjoyment of their homes undisturbed by smoke fumes, loud music or other intrusions from adjoining flats.

But then you go to a tribunal and bump up against the inability of some Members to consider the spirit and intent of strata law, combined with the needs of residents, and come up with a fair and sensible resolution.

Are they doing anyone any favours by telling them they can smoke where and when they like? Or forcing owners to go away and come back with a different way of presenting the same complaint, just so that it ticks all the right legal boxes?

While tobacco smoking is declining – down to 8 per cent of young adults, according to the latest Australian Bureau of Statistics figures – it peaks at over 13 per cent for the 45 to 65 age groups. 

Enter, the grumpy old smokers whose homes are their castles. Smokers may be a dying breed, literally, but they tend to fire up at the first signs of restrictions.

And while individual strata schemes could introduce bans on smoking on balconies – or at least curb smoke drift from balconies and individual apartments on to common property – passing the by-laws required to make this enforceable could prove challenging.

Very few strata schemes would have the stomach for a fight at a tribunal where they would have to lawyer-up against smokers who can fight to the last gasp – free of charge – to defend their “rights”.

A recent post on the Flat Chat forum from a strata committee member in a small block describes efforts by a committed minority to block a by-law that would ban smoking on common property – a standard restriction in the vast majority of apartment blocks, but not part of strata law.

It is relatively easy for opponents to veto by-laws.  In most states they only need 25 per cent of votes cast at a general meeting. To be clear, that’s a quarter of the ballot, not the totality of owners.

Meanwhile, the call for a ban on balcony smoking prompted a somewhat exaggerated concern that it might also affect barbecues.

But it could happen. For instance, a smoker could argue that banning cigarette smoke was discriminatory if barbecue smoke and incense burning wasn’t also banned. That’s one fight few committees or owners corporations would sign up for, especially given the potential for appeals and re-hearings.

However, having had to put up with decades of stink and smoke from a procession of selfish sods in neighbouring flats, I say bring on the balcony barbie ban! Or just make burning off last week’s fat and gristle a criminal offence.

An edited version of this column first appeared in the Australian Financial Review.