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We have at least two units near us with chain smokers in them. They typically smoke most nights on their balconies and we suffer the smoke drift unless we close all doors and windows.
We spoke to our building manager who said there was nothing he could do to stop them smoking on their own balconies.
A number of the posts in the smoking section are from a few years ago and we were wondering what the current regulations and laws are in relation to this (if any)?
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The trouble with balconies is they are architectural nightmares in the first place. Back in the ’70s, almost all inner city terraces had enclosed balconies, adding an extra room to each property & they looked good. Nowadays, almost every building has balconies, creating neighbourhood nightmares with people partying, BBQing, smoking etc. Not only should balconies be banned, but the rear & front courtyards of all terraces & townhouses should be enclosed, creating extra space, therefore wealth, for their owners. Naturally, verandahs should be banned too. People hanging around the outside spaces of their homes just doesn’t work, with all the noise & various forms of smoke drift.
Maybe no-one should ever go outside Daphne?
To answer your question CharlieBoots, the current laws and regulations haven’t changed.
Refer here re the proposed model by-law, which I believe may have been shelved.
But there is nothing stopping you putting up a by-law like that to the OC for approval.
Refer also here:
https://www.cancercouncil.com.au/wp-content/uploads/2011/10/Case-studies1.pdf
The other option is to progress an action on the basis that those owners are causing a nuisance under section 117 of the Act, which was successful in the Highgate case. It is not correct for your strata manager to say there is nothing they can do, so I would suggest that you go back to him/her and tell him you have a legitimate complaint and that you expect to have it taken seriously. If necessary put it in writing.
@scotlandx said:
Maybe no-one should ever go outside Daphne?To answer your question CharlieBoots, the current laws and regulations haven’t changed.
Refer here re the proposed model by-law, which I believe may have been shelved.
But there is nothing stopping you putting up a by-law like that to the OC for approval.
Refer also here:
https://www.cancercouncil.com.au/wp-content/uploads/2011/10/Case-studies1.pdf
The other option is to progress an action on the basis that those owners are causing a nuisance under section 117 of the Act, which was successful in the Highgate case. It is not correct for your strata manager to say there is nothing they can do, so I would suggest that you go back to him/her and tell him you have a legitimate complaint and that you expect to have it taken seriously. If necessary put it in writing.
Charlie, From experience I would highlight scotlandx’s reference to the Highgate case and the law re general nuisance. Smoking is accepted to be a nuisance these days.
The other part is gathering and submitting to both the OC and the strata manager the evidence that it is a nuisance to you and denies the occupantants of your unit “The quiet enjoyment of your property”.
Evidence could include, statements about times and dates by occupants, videos, pictures or even air samples (a bit more involved and costly).
@scotlandx said:
To answer your question CharlieBoots, the current laws and regulations haven’t changed.I agree with everything else Scottie said apart from the above (kind of …). Not exactly on point, I know, but the Environmental Health laws were changed in January making it illegal for people to smoke outside the entrances to apartment blocks.
Back to this question, as Scottie said, by-laws are the answer and if too many object, point out that if you had a smoking ban and tried to rescind it, you would probably fall foul of the ACt that doesn’t allow you to pass by-laws that contradict provisions of the Act (such as the right to peaceful enjoyment and freedom from nuisance).
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.
@daphne diaphanous said:
Back in the ’70s, almost all inner city terraces had enclosed balconies, adding an extra room to each property & they looked good.You are joking, right? They were and are hideous extrusions and it’s great to see them gradually be restored to their iron lace splendour.
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.
Well, JimmyT. I did expect you to have first hand knowledge of their appearance back in the ’70s & a fair few of this forum’s readers. I’m told I have a very dry sense of humour.
No – refer my answer re section 117. You can also pressure the strata manager to take action, if is causing a nuisance. It sounds like it is.
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