Smoke drift battle exposes NCAT’s farcical flaws

The recent Sydney Morning Herald story about a couple who – at the third attempt – won a case to get their neighbours to stop smoking on their balcony may have sparked alarm in certain quarters.

The couple concerned called for a state-wide ban on smoking on balconies, provoking fears that this could lead to a ban on balcony barbecues (heaven forfend!).

But this yarn is a lot of smoke without very much fire and the call for new anti-smoking laws, stems from the couple’s frustrations at simply getting a tribunal (NCAT) to enforce what should be pretty straight-forward restrictions.

In fact, the smoke-affected residents had to wait 15 months and endure three hearings before the powers-that-be finally landed on a verdict that protected them from smoke drift.

The question remains, why did this have to be so hard?  Surely all they needed to do was show that smoke from the neighbour’s balcony drifted into their homes.

Putting this very simply, the NSW strata law says “smoke from smoking” can be regarded as a “nuisance”.  Another section of the law, plus standard by-laws, say strata residents aren’t allowed to create a “nuisance” for other residents.

I put quotes around the word “nuisance” as it is a legal term that has more far-reaching definitions other than something that’s bloody annoying.  More accurately, it’s behaviour that harms other residents or disturbs the “peaceful enjoyment” of their homes.  

In the initial case, in September 2021, the Kingscliffe couple successfully argued that persistent smoke drift from their neighbours’ balcony was, indeed, a nuisance.

The Tribunal ordered their neighbours to only smoke inside their home with the windows and doors closed.  The neighbours appealed in December of that year and the appeal was heard in March of last year (2022).

The NCAT Appeals panel overturned the initial decision in May 2022 on the grounds that there was an error in law in the verdict, specifically that the plaintiff had failed to prove that they were being harmed by the smoke. 

On the point in the original submission that “there can … be no real dispute to the contention that the inhalation of second-hand smoke is a health hazard”, the Appeals Panel said it was “unable to locate any material which could have justified such conclusion.”

The findings also cited the fact that there was no by-law in place. The Kingscliffe couple only prevailed after a subsequent hearing ordered by the Appeals Panel. But reading through the original findings, you can see why anyone involved in a dispute that goes to a tribunal could get frustrated.

For instance, the verdict quotes the NCAT Act thus: “The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”

But then goes on to argue that since the plaintiffs didn’t provide evidence that passive smoking is harmful then the tribunal couldn’t establish that there was a nuisance. (I’m paraphrasing here, but that was the gist of it).

This is exactly the kind of thing that makes people despair of the whole tribunal system.  It’s also the kind of nit-picking that leads to the whole system being clogged with bush lawyers and libertarians who’ve never embraced the idea that strata is a community where common sense is often a better guide than “black letter” reading of the law.

Consider this:  The Kingscliffe couple had a good case and they won.  However, eight months later the verdict was overturned on a legal technicality.  Then, 15 months after the original hearing, the original verdict was upheld.

NSW Fair Trading (and other states) needs to seriously consider instituting a fast-track system that enforces the law as it’s written and, more importantly, intended and gives people quick results so they can get on with their lives.

Let the various state tribunals deal with the curlier questions that will undoubtedly arise, and let people appeal if they think they’ve been hard done by.

But all this Rumpole of the Bailey stuff is a waste of time, money, and emotional energy. Justice delayed is justice denied.

You can read my suggestion for a fast-track strata dispute panel HERE and more about this case in this weekend’s Australian Financial Review.