This is covered by Section 153 (below) which establishes that smoke drift can be considered a nuisance, depending on the circumstances, regardless of any by-laws that may or may not be in place.
The only question is whether the strata committee:
- asks the smoker to stop then pursues a case to mediation and NCAT if they don’t
- or supports the victim if they take the case themselves
- or ignores the victim and leaves them to their own devices
In the final scenario, the smoke victim could ask for mediation (which is free) and then seek orders at NCAT – but they really shouldn’t have to do this on their own.
153 OWNERS, OCCUPIERS AND OTHER PERSONS NOT TO CREATE NUISANCE
(1) An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not:
(a) use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes 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 a manner or for a purpose that interferes 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 a manner or for a purpose that interferes 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.
Note : Depending on the circumstances in which it occurs, the penetration of smoke from smoking into a lot or common property may cause a nuisance or hazard and may interfere unreasonably with the use or enjoyment of the common property or another lot.