Standard smoking by-law challenged

The first and best option is to make sure the objectors don’t raise the necessary 25 percent of unit entitlements needed to block the by-law.  That means gathering as many votes and proxies at the meeting as you can.

Part of that process will be to convince owners that if they don’t pass the by-law, and don’t have a by-law about smoking in place at all, the model by-law will apply by default.

Also, strata laws on nuisance – which supersede by-laws – will mean the owners corporation can look forward to months if not years of expensive legal action, defending a position that most of them don’t agree with.

On the other hand, rejecting the by-law means the smokers have fluffed their last chance to moderate conditions that could see them prevented from smoking anywhere in the building, including their own homes.

Or you could just let them shoot themselves in the collective foot.

If it were me, I’d be circulating a politely worded and succinct leaflet about how horrendously expensive it could be for everyone if they don’t pass a reasonable by-law.

And I might chuck in a line about how not controlling cigarette smoke could lead to barbecues being banned too.  Don’t explain (it’s drawing a long bow). Baffle them with BS and blind them with science.

If that fails, you can petition NCAT (possibly under section 148 – revival of repealed by-laws) to order the owners corp to adopt a reasonable by-law that controls smoking – not on common property and not on balconies if it drifts into other lots.  The owners corp may well decide not to defend the action on grounds of costs.

This option would definitely benefit from consulting an experienced strata lawyer.

Smokeye wrote:

What do you mean, the model by-laws will apply by default? If so, what’s the point in adopting the model by-law in the first place?

It is my understanding (and I could be wrong*) that if you don’t have a by-law covering a specific subject, then the model by-law on that topic applies.  However, it strengthens your case a great deal if a) you have a by-law and b) your strata scheme hasn’t voted against having a by-law. In one Tribunal case about smoking recently, the Member noted that there was no by-law in place.  That wasn’t the reason for overturning a smoking ban, but it obviously figured in their thinking.

*This information came many years ago from a senior mediator at Fair Trading. It may have changed.

strata laws on nuisance / expensive legal action – what do you mean? I can take my neighbour to NCAT for smoke drift under s153 for nuisance/hazard?

Any owner can take another resident to NCAT seeking orders to prevent a breach of strata laws.  Causing a  nuisance (and smoke drift is specified) is a breach of strata law.  However, it carries more weight if the complaint is taken by the strata committee. To be clear, the NCAT action would be against one smoker – not all smokers in the building.

“moderate conditions that could see them prevented from smoking anywhere in the building, including their own homes” – does this mean that if, in the future, smoking is outlawed in strata buildings, they will have nothing to fall back on?

Hypothetically, if you pass a by-law that says, for instance, they can’t smoke on common property or on their balconies if they allow smoke drift into other homes, they can still smoke inside their homes and on their balconies, provided it isn’t bothering anyone else.  However, without a by-law, a resident could theoretically get orders to prevent any smoking that bothers anyone anywhere and those smokers might not only be greatly restricted in what they can and can’t do, but would be in breach of Tribunal orders if they continued and the penalties for that can be  much higher.

Am I allowed to circulate a leaflet to all residents by putting it in their letterboxes? I am the secretary of the EC.

Absolutely.  If you are talking about the need for a by-law, that’s part of the normal business of the strata scheme and you can send emails to non-resident owners too.

Could you recommend a good strata lawyer whose brain I can pick for a fee? I am in Sydney.

Good idea! There are two legal firms advertising at the top of this page Sachs Gerace and Bannermans. I would recommend either of them and be sure to tell them you got there via Flat Chat.