#24879
Jimmy-T
Keymaster

    Hi Annabella

    I think you misunderstand the function of by-laws.  Even if the new laws were to include an anti-smoking by-law, it would only apply to your scheme if your owners corp subsequently adopted it.  

    For that to happen, no more than 25 percent of owners at a general meeting would have to object.  To put it another way, you would have to have 75 percent of owners voting at the AGM, doing so in favour of the by-law.

    What you need to find is your current by-laws and look for any that relate to the “peaceful enjoyment” of your lot or, more specifically, to smoking on common property.  If they already exist, then you need to pursue that through Fair Trading and/or NCAT. To find out how, click here.

    However, even if there is no by-law, you can rely on Section 117 of the law (below)  which says that owners and occupiers must not use their lot or common property in a way that creates a nuisance or hazard to other residents.

    It would seem on the face of it that excessive smoking is both a nuisance and a hazard to you.  By the way, the new laws will, for the first time, define “smoke from smoking” as a nuisance.

    So my advice would be to gather up your evidence, doctors’ letters, supporting letters from neighbours and friends about the volume of smoke and frequency of smoking, then apply to Fair Trading for mediation.  Your neighbour may refuse to attend mediation but, for you, it is a compulsory precursor to seeking orders at the Tribunal (NCAT).

    If you are successful at NCAT – and there are no guarantees – and the smoking continues, the smoker may be liable for fines of up to $5500.

    If you wait until the new laws come in at the end of this year (probably) the NCAT process will be a lot quicker and easier because the deeply flawed “paper” assessment of cases  – where the person best at filling in forms wins – will be scrapped.

    Meanwhile, here is the part of the Act that you should be asking your strata manager to send to the heavy smoker, asking him to cease and desist or face the consequences.

    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), or

    (b)  use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or

    (c)  use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.

    (2)  This section does not operate to prevent the due exercise of rights conferred on a developer by the operation of:

    (a)  in the case of a freehold strata scheme, section 28L of the Strata Schemes (Freehold Development) Act 1973, or

    (b)  in the case of a leasehold strata scheme, section 52 of the Strata Schemes (Leasehold Development) Act 1986.

    (3)  In this section, lessee of a lot in a strata leasehold scheme means a sublessee of the lot.

    The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.