This week the pod is lighting up (but not inhaling) the smoking ban placed on a Queensland apartment resident who’s been ordered to take her habit inside and off her balcony because her smoke is a hazard to the neighbour upstairs.
There are so many aspects to this, not least that her block has a designated smoking zone and her committee has been rapped gently but firmly on its knuckles for declining to enforce its own by-laws.
Why does this mean for Queensland smokers? Are they retreating to the toilets where the fans can deal with their fumes? Or will they be trying to amend their by-laws to force the neighbours to put up with smoke, like freshly caught salmon.
The resistance is already fired up (ouch!), according to a comment on the end of the original story.
While we were on the topic of by-laws, I tried to find the “model” by-law on smoke drift that Victoria was bringing in. I couldn’t locate it before we recorded the podcast, but after chasing down broken links and hidden entrances, I tracked it down.
In schedule 2 of the Victoria owners corporation regulations, it says:
1.4 Smoke penetration
A lot owner or occupier in a multi-level development must ensure that smoke caused by the smoking of tobacco or any other substance by the owner or occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot.
Interesting! It’s says nothing about nuisance or hazard, just that the smoke from tobacco or “other substances” must not penetrate other lots or common property.
Moving on (while we casually flick our ash off the balcony), we also discussed the apparent contradiction between hosted properties as per Planning NSW regulations and principal places of residence, as in Fair Trading’s short-term letting rules.
Planning said there is none, we disagreed and they’ve gone off to check.
And finally, the strange case of the attempt to overturn a no-pets by-law which failed because there was no pet.
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TRANSCRIPT IN FULL
There’s been a few very interesting developments in various Tribunals, in the past week or so. Smoking has been dealt with in Queensland, in a very interesting way. There’s also been an instruction about the too-hard basket; I think we’re seeing the death of the too-hard basket.
Well, you never know!
I mean, that rules supreme in strata, really!
And, in New South Wales, a very strange decision from a Tribunal, about a no-pets by law, where an adjudicator decided not to overturn a no-pets bylaw, for a very strange reason. I’m Jimmy Thomson, I write the Flat Chat column for the Australian Financial Review.
And I’m Sue Williams and I write about property for Domain.
And this is the Flat Chat Wrap.
Up in Queensland, they like their personal freedoms…
They certainly do.
And there’s been a Tribunal decision, which reminds people that they have personal responsibilities as well, when it comes to living in apartments there.
Oh yes? Tell us about it.
A woman (and this started last January), complained about the neighbour below her, who was constantly smoking on her balcony. She was saying “well, this interferes with my rights to have a peaceful enjoyment and it’s a health hazard and it’s a nuisance.”
That would be horrible.
Absolutely, and she claimed the woman was a chain smoker, which is not strictly correct, because to me, a chain smoker is somebody who lights their next cigarette with the end of the previous one.
That’s a very literal definition. I mean, there have been lots of chain smokers, but there’s not many people who do that, because you’d get through, how many thousands of dollars a day?
Well, that’s true. The cost of cigarettes…I’m going back in time; it’s been a while since I’ve seen anybody doing that, I’ve got to say.
I reckon a chain smoker these days would be somebody who smokes 20 a day. In the old days, it would be 40 a day, but now I reckon 20 a day, you could say, was a chain smoker.
It’s not that long ago that the Health Minister in South Africa said that smoking 20 cigarettes a day, was a healthy amount of smoking.
How times have changed!
Absolutely. Anyway, so this lady was a heavy smoker, and possibly by your definition, a chain smoker. She was smoking three, or four, or five cigarettes, in an hour.
That’s a lot.
The woman upstairs said “look, we’ve got a bylaw on smoking, saying that you’re not allowed to create…”
‘A nuisance or a hazard or interfere unreasonably with the use or enjoyment of another lot;’ that one?
Yes, by smoking on your balcony. So, this is a bylaw specific to this strata scheme; this body corporate in Queensland. The building is called the Artique and it’s in Surfers Paradise. She went to the body corporate committee and said “look, this woman downstairs is smoking all the time and it’s coming into my apartment. I have to shut my doors and windows and I feel suffocated. It’s a hazard; it’s a health hazard. It’s a nuisance and it’s in breach of the bylaws.”
Yes, so the body corporate committee said “we are not equipped to decide whether this is a breach of the bylaws or not, but we’ve sent the woman a copy of the bylaw, to let her decide whether she is creating a nuisance or a hazard.”
I can guess the outcome of that!
The downstairs neighbours said she believes she had a right to smoke on her property and she would continue to assert that right. She said the bylaws were not the law and she was not hurting anyone and she was not doing anything wrong and could smoke anywhere on her property that she wanted. She said she couldn’t help where the wind blew and that she got cigarette smoke, marijuana smoke, BBQ Smoke, strong perfume smells, cooking smells and other smells, entering her lot.
So she should be keen to have that bylaw enforced, then.
And she objected to being dictated to, as to what she could do in her own home and she claimed she had a disability that prevented her from going down to the designated smoking area in the apartment block.
Designated smoking area?!
Yes well, this is a thing; it’s a new thing. It’s something that’s come into the strata laws (in New South Wales even). Since they brought in the smoke drift regulations in New South Wales, Owners Corporations have been allowed to designate an area where people can go and smoke, provided the smoke doesn’t drift into apartments from there.
So it’s got to be a part of a common area; closed-off, so that the smoke can’t escape?
Because generally speaking, you cannot have smoking on common areas.
That’s bizarre, isn’t it? So could a smoker demand that her body corporate actually introduce a smoking area, or has it not really been tested yet?
It’s not really been tested, as far as I know, but you know, there’s so many complications with this. You’ve got the general rule that you can’t smoke in common property. You’ve also got health and safety issues, like a concern that people could come and say “I wouldn’t have smoked if you hadn’t created a smoking area, and now I’ve got lung cancer…”
And also, cleaners going in there to clean it; the dangers to them.
But we’ve all seen them in airports. You know, those boxes; you didn’t actually have to light up a cigarette, you just went in there and breathed for a while. So there was a designated smoking area and she had a disability that prevented her from using it. The outcome was quite interesting, because (well, this is something that puzzles me), the adjudicator said “it did not meet the legal definition of ‘nuisance…'” I’m confused about what the legal definition of ‘nuisance’ is?
What worse nuisance can you have, than something that might affect your health?
Apparently, nuisance doesn’t mean something that’s annoying…
Or affects your health.
Or affects your health. Maybe, a lawyer listening to this will write to the forum and tell us what ‘nuisance’ is. However (and this was a breakthrough in Queensland), she said there was no question that it was a hazard. It has been proven that passive smoking damages the health of other people. That’s why we have smoke-free restaurants in pubs now, and things like that. So, in that case, it not only breached section 167 of the Body Corporate Management Act in Queensland, it also breached their own bylaw and so the smoker has been told to smoke inside her flat, but she doesn’t have to keep her windows shut, provided the smoke that escapes through the windows doesn’t go into another apartment, which sounds a bit tricky.
I mean, it is a compromise, but it’s quite hard for somebody to smoke in their apartment and never open the windows. You know, smoking on a balcony, you’d get a lot more smoke-drift than you would through a window.
But, one of the people supporting the upstairs neighbour’s submission said that the only reason the downstairs neighbour smoked on her balcony was because she didn’t want to stink up her own home.
So, just stink up other people’s?
Which is why people close their balcony doors, when they have their barbecue smoke going.
So, could this be applicable to other States; other people who have problems in New South Wales or Victoria with people smoking on their balconies and the smoke drifting up?
I mean, the smoke-drift hazard from smoke-drift, or nuisance from smoke-drift has been written into the New South Wales laws. I haven’t heard of any cases in New South Wales where somebody has been found to be in breach of the Act, but it does allow for the creation of bylaws, to restrict smoke-drift. First of all, I think you’ve got to have the bylaws, then you’ve got to have somebody complaining about it, then you’ve got to get it to a Tribunal. I mean, there could be (for all we know), thousands of buildings that have introduced a smoke-drift bylaw, who have had a complaint from a neighbour. They’ve told the people who are smoking that they’ve got to stop doing it and it’s just been dealt with that way. You don’t get that many people who are saying things like “I’m a sovereign citizen and bylaws don’t apply to me.”
In which case, you shouldn’t live in apartments.
Absolutely. That’s a good piece of advice. If you think you are a sovereign citizen and the laws generally don’t apply to you, don’t live in an apartment; certainly don’t live in an apartment near us!
And go and live in the country, in a house, perhaps. We had a friend who lived next door (in an apartment), to a man who lived somewhere else, but he just rented his apartment, because his wife didn’t like the smell of his cigar smoke. He rented the apartment in another building to use as his smoking room and unfortunately, he would leave his front door open, so the cigar smoke (and I hate the smell of cigar smoke; I think it’s horrible), would drift into everybody else’s apartments as soon as they opened their door. That was just awful. In the end, our friend left that building, because he couldn’t stand it anymore.
There was also a case there, that by opening his door to let the smoke blow through (because that’s why he was opening the door), it was in breach of the bylaws, because he was then allowing smoke to go onto common property. If our friend had wanted to cause trouble, or if our friend hadn’t not wanted to cause trouble, he could have complained to the committee and they would have had to have dealt with this person, but our friend, basically, he just wanted a peaceful life. That involves not being involved in strife with your neighbours and if your neighbour happens to be somebody who’s totally selfish, then maybe, your only option is to go and move and rent somewhere else.
Sure. That’s a shame, because I mean, there seems to be far fewer smokers around now. The number of times I’ve seen somebody smoking in the street in the last few months, were negligible. I mean, occasionally you see somebody with an electric cigarette now, but you just don’t see people smoking very much, anymore.
What’s interesting is New Zealand is bringing in a law (that I have said every country should have), which doesn’t impinge on people’s personal freedoms, at all. It just says anybody born after a certain date, cannot buy cigarettes. So you say right, all the 16 -year-old’s (I guess), in New Zealand right now, can buy cigarettes if they want; 15-year -old’s can’t. From January 1st, 2008; if you’re born after that date, you cannot buy cigarettes. It’s not impinging on anybody’s freedoms, because they don’t have that freedom.
It hasn’t been taken away from them, because they’ve never had it.
In real terms, you know, you get the spotty 18-year-old, going in to buy cigarettes, and the tobacconist is going “really? I’m not sure about this guy.” If in five-years’ time, it’s a spotty 18-year-old who would really need to be 23, then they can go “you’re just way too young. I need to see proof-of-age.” So basically, in 25-years’ time, New Zealand will be a smoke-free country.
You’d hope so.
All the smokers will have died out and they won’t have been replaced by younger people.
There might be a black market for cigarettes and I’m sure that will happen.
People will be coming to Australia for a quick smoke; nipping over to Australia for a ciggie. Anyway, that was that and the smoker has been told to smoke inside. Oh, you asked the question of would this affect other States? In this specific case, the adjudicator looked at a case in New South Wales and said, basically, there has been (not so much a precedent, but a previous decision), a relevant decision about what constitutes a hazard. Other states can now look at Queensland and say it has been decided at a very high level that smoke-drift is a hazard, so that just piles on the next time somebody takes it. I think the next cab off-the-rank will be Victoria, because they’ve just changed their laws to allow Owners Corporations to create bylaws, to deal with smoke-drift, but (and we’re going to talk about this, after we take a short break), the adjudicator said that the body corporate committee did not have the right to not deal with the problem. I’m calling this the death of the too-hard-basket.
So, what is this death of the too-hard-basket?
Okay, in this decision, if you recall, the body corporate committee at the Artique building said that they were not equipped to decide whether or not their bylaw had been breached. The adjudicator said “you can’t just do that; you’ve got a bylaw and you’ve got to deal with it and if you are unsure about whether or not a breach has occurred, then you should ask for advice and opinions, so that you’ve got something to go with.” You cannot just turn around and say “nah, it’s too hard; this is a dispute between two neighbours,” which is what they said. That’s a kind of precedent as well, for other States, because that’s the thing that a lot of people hide behind (a lot of strata committees; certainly in New South Wales and Victoria). They say “this is between two neighbours,” even though there’s a clear bylaw. They’ll say “no, it’s it’s a dispute between two neighbours, so we’re not getting involved.” And, as we have said many, many, many times in Flat Chat and especially on the forum, there is an obligation. It’s not spelled out in so many words, but there is an obligation in the Act, for Owners Corporations to enforce their bylaws. You can’t just say “this is too hard.” It’s interesting in Victoria, where they’ve changed the laws… It’s weird; you go on these websites… These Government websites; they just don’t update them often enough. The one in Victoria (the Consumer Affairs website), says that Owners Corporations can create a model bylaw (that’s the word they use; a model bylaw), to deal with smoke-drift. A model bylaw is something that’s created by the Government…
For them to use, or not use, or adapt, or whatever. So they just casually use this terminology ‘the model bylaw.’
But not really understand the implications, or anything
Except the implication is, that people in strata are going “how can we create a model bylaw?” A model bylaw should apply to everybody. There is no model bylaw (that I can find), in the Victorian model bylaws, but there is the opportunity, created by legislation that came in last month, for Owners Corporations to create a bylaw. The other thing that’s interesting in Victoria (and this applies in New South Wales as well), is if your bylaws don’t address an issue that is addressed in the model bylaws for your State (and again, the model bylaws are the ones that Fair Trading, or Consumer Affairs in Victoria, send out in the laws, in the regulations)… If you don’t cover an issue that’s covered in the model bylaws, then if that issue comes up, the model bylaw pertains, automatically. So you might not have a pet bylaw and decide “it’s too tricky; let’s not even go there.”
NB The model by-law has now been discovered – see the “show notes” above.
Hide under the covers. So then, the model bylaw comes in?
If somebody says “I’m allowed or not allowed,” the model bylaw kicks in, and that covers smoking, as well. But, I’m still to find the model bylaw that Victoria says it’s got. I’ve spent hours going through websites and discovering that they’re contradictory, as we discussed last week, about Airbnb. On that note, I’ve been involved in a fairly heated discussion with Planning and Fair Trading; I said last week that they contradicted each other, so let’s wind this back a bit… In New South Wales, in Greater Sydney, you can create a bylaw in your apartment block that says you don’t want short-term lets; holiday lets… One of the ways to get around that is for owners or tenants to say “this is my principal place of residence; I live here most of the time, so I can let it out when I’m not here.” That gets around the bylaw that may exist in the building. However, they don’t define what ‘principal place of residence’ is. They don’t define what a ‘temporary absence’ is. Theoretically, the definitions that I found says that a principal place of residence is where you sleep; where you keep your stuff most of the time. You could have somebody who stays in their apartment 27 weeks a year, and lets it out for 25 weeks a year. Or, more realistically, somebody who stays in their apartment four or five nights a week, but then lets it out at weekends, which is when Airbnb lets are most common. So I’d said “okay, that’s what Fair Trading say; Planning New South Wales says that a ‘hosted let’ means that the owner or tenant; the resident has to be there physically, while their guests are there.” I’m saying these two are contradictory.
And they’re arguing that it’s not?
They’re saying it’s not.
How do they make that out?
Because they have defined the two things as ‘hosted’ and ‘un-hosted.’ That’s when you just rent the whole house, or the whole apartment. Hosted is where you say “come and have a room in my apartment.” They don’t even address principal place of residence, so there’s either a contradiction, or there are three categories and principal place of residence is a new category I think they probably need to define. They’ve got to say “well, how many nights a year,” because under the current law, you can let out your apartment or your house in Greater Sydney, for 180 nights a year… How many nights a year can you let somewhere that you call your principal place of residence?
Interesting and I think as well, last time you were looking at listings on the Airbnb site?
Oh, yes. I found a couple that said they were exempt; they didn’t have the registration number. Currently in New South Wales, anybody who’s renting on a holiday letting website, has to register the property and they get a registration number and if that registration number isn’t attached to their property, then the letting platforms (like Airbnb and Stayz), are supposed to not list them. So there I went…
And you discovered that lots of them had ‘exempt’ on?
They had no registration number, but they had ‘exempt.’
The first three I looked at just at random, in Sydney.
So you were checking out, what does ‘exempt’ mean?
Interestingly, Planning New South Wales said there are no exemptions, so there couldn’t be any that said they were exempt. Then I discovered that if your property is in a building which has permission to be a short-term let building, or serviced apartments, or apartment-style hotel accommodation, then it is exempt. But these properties I looked at were not in hotels, or short-term-letting commercial buildings; somebody had just decided that they were exempt. It’s really funny, because I went back to look for them again and they’ve either got registration numbers, or they’ve been taken down.
Ah, so that was obviously a bit of a scam, that people just tried.
Yes. The thing about Airbnb especially is, they are all about the host; they are all about helping the host get maximum profit for the very simple reason that the more they make, the more Airbnb makes. It’s as simple as that. The second consideration is the guests. Way down the list are the neighbours, who probably don’t even feature on the Airbnb radar, at all. So, if you go to Airbnb and say “hey, I’m an exempt building,” they’ll go “great. We’re not going to send somebody around and check… We’re not going to ask you for your credentials, to prove that you’re exempt.” You just say “hey, we’re exempt,” and they’ll go “right, we’ll put you through as exempt.” Then, some annoying journalist comes along and says “really? How can you possibly be exempt, when you are an apartment, in a luxury block, in Cremorne? How can that be exempt?” They’ve gone “oh right; we’re not exempt… We’ve…
Just made a mistake.” Well, that’s interesting; well done, Jimmy!
But then Planning New South Wales are saying that there’s no such thing as ‘exempt.’ Well, yes there is guys; the definition is there. It’s very confusing!
Yes, it’s a bit of a muddle, isn’t it?
It’s a big muddle. Right, that’s enough; I don’t want to talk about Airbnb, or Planning or anybody else, anymore… I want to talk about weird decisions on pet bylaws and we’re going to do that, after this.
So, just when you thought it was safe to have a dog or a cat in an apartment, then something even weirder happens. What is it?
Well, it kind of is still safe to have a dog or a cat in an apartment but (according to a recent tribunal decision), you cannot preempt the decision of your committee to reject your dog or cat. Look, my head might explode halfway through this.
Yes, I didn’t understand that at all.
So somebody went to Tribunal and said “my building has a bylaw that says you may not have a dog or cat in this building. Can you please, Mr Tribunal person, rescind that bylaw, because it conflicts with section 137b of the Act, which says ‘a building may not have a blanket restriction on pets.”‘
So you’d expect the Tribunal immediately to repeal that bylaw, wouldn’t you really?
But obviously, they didn’t?
No, and the reason they said, was there was no actual cat or dog, involved in this.
Nobody had a pet?
Yes, so they didn’t really have a grievance, because they hadn’t been refused to have a pet.
That’s ridiculous! I mean, people are not buying pets, because they think they might not be allowed in, or adopting pets…
I mean, basically, what this decision is saying is, get your pet in…
Fall in love with it…
Fall in love with it…
Train it, spend a lot of money on accessories…
And then when your Owners Corporation start sending you breach notices, then come to us and go through all this crap.
How ridiculous because what if you lose? Are they saying then “oh no, I’m afraid you’ll just have to get rid of your beloved pet?”
Last week, we were talking about another decision up in Queensland (the gist of which I can’t recall), but at the end of it, the adjudicator ordered the Owners Corporation to change their bylaw and our strata law allows adjudicators at NCAT to order bylaws to be changed, or rescinded. Why can they not say “look this is in contravention of the law; it’s causing strife, it’s causing a lot of grief…” Maybe, that building might want to restrict the kind of dogs or cats or put some provisions in there that they’re not allowed to go onto common property, or things like that. Instead, they’ve got a bylaw, that if it was challenged, would probably be overturned. But first, you’ve got to have a dog or a cat. We should start a service, where we rent out our cats to people.
So then they can go to a Tribunal. It’s so bizarre; you can have a building bylaw about preventing fire; the risk of fire, but nobody would say “well, we kind of have that bylaw, because we don’t actually have a fire going on at the moment.”
It is. It’s the kind of thing I think, that brings NCAT into disrepute, because people are just shaking their heads. The gist of it was “if there was a pet involved, we would overturn this bylaw, but there isn’t, so we won’t.”
It sounds like the too-hard-basket doesn’t it, Jimmy?
NCAT has its own too-hard-basket, I’m thinking. You know, as part of the the Tribunal laws in New South Wales, you’re not allowed to criticise Tribunal decisions publicly?
Yes, the police will be around, any minute. And on that note, before we go into hiding, thank you again, for listening. And Sue, thank you for taking part.
We will talk to you all again soon. Bye.
Thanks for listening to the Flat Chat Wrap podcast. You’ll find links to the stories and other references on our website flat chat.com.au. And if you haven’t already done so, you can subscribe to this podcast completely free on Apple podcasts, Google podcasts, Spotify, Stitcher, or your favourite podcatcher. Just search for Flat Chat Wrap with a ‘W,’ click on subscribe, and you’ll get this podcast every week without even trying. Thanks again. Talk to you again next week.