No respite in Mosman

2011-01-19T14:34:59+11:00

Last year our Executive Committee passed a by-law banning smoking not only on all the common property of the building (balconies, footpaths, car park etc) BUT in each unit too! The also passed a by-law banning the use of BBQ’s on the property. We’ve had a couple of smokers try to breach the by-law, and in response, the EC sent them letters informing them that if they continue to break the by-law, not only do they risk having their lease terminated, but they also risk being fined for breach of by-law (i.e. being issued with a Notice to Comply with a By-Law, that carries a penalty of $550) and will even be charged for any damage caused to their unit and the common property, such as having the walls repainted, carpet dry cleaned etc. Listed below are the two by-laws in case anyone else would like to use them in their strata scheme: 1. By-law prohibiting smoking on the premises: (i) The owner or occupier of the lot must not smoke nor allow smoking within a lot or within the common property. (ii) Without limiting para (i), the owner or occupier of a lot must not allow any invitee to his lot to smoke within the lot or upon the common property. 2. By-law prohibiting the use of BBQ’s on the premises: No owner or occupier of a lot may use (nor allow any other person including their invitees to use) any cooking device including any form of barbeque - whether gas, electric or otherwise - on any balcony or terrace forming part of their lot or elsewhere on the common property.

This topic has 7 replies, 1 voice, and was last updated 13 years, 11 months ago by .

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17/01/2011 at 2:40 am #7192
Anonymous
The following was sent as a comment by Rachel.

Did anyone see this in the Mosman Daily today? I feel for this guy…

https://mosman-daily.whereilive…..-own-home/

—Rachel

Apart from the selfishness of the smokers and attitude of the Executive Committee in the above story, the real shame is that there's nobody there who seems prepared to step in and test the law. Strata law says you can't create a nuisiance and one of the legal definitions of “nuisance” is something that is persistent and causes health problems. Is nobody prepared to run a test case for this poor bugger so we can establish a legal precedent in the Supreme Court? Come on all you legal eagles – time to step up and make a name for yourselves.
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19/01/2011 at 2:34 pm #12356
Anonymous
Last year our Executive Committee passed a by-law banning smoking not only on all the common property of the building (balconies, footpaths, car park etc) BUT in each unit too! The also passed a by-law banning the use of BBQ’s on the property. We’ve had a couple of smokers try to breach the by-law, and in response, the EC sent them letters informing them that if they continue to break the by-law, not only do they risk having their lease terminated, but they also risk being fined for breach of by-law (i.e. being issued with a Notice to Comply with a By-Law, that carries a penalty of $550) and will even be charged for any damage caused to their unit and the common property, such as having the walls repainted, carpet dry cleaned etc. Listed below are the two by-laws in case anyone else would like to use them in their strata scheme:

1. By-law prohibiting smoking on the premises:

(i) The owner or occupier of the lot must not smoke nor allow smoking within a lot or within the common property.

(ii) Without limiting para (i), the owner or occupier of a lot must not allow any

invitee to his lot to smoke within the lot or upon the common property.

2. By-law prohibiting the use of BBQ’s on the premises:

No owner or occupier of a lot may use (nor allow any other person including their invitees to use) any cooking device including any form of barbeque – whether gas, electric or otherwise – on any balcony or terrace forming part of their lot or elsewhere on the common property.
23/01/2011 at 1:40 pm #12364
Anonymous
The
LAW doesn't need to be tested. The precedent has already been set,
https://www.ashaust.org.au/lv4/StrataHighgateDecisionNSW06.doc , what is needed
is someone to help the afflicted tenant to “encourage” the Strata
Managers to do their job properly.

The
first step should be for someone to take legal action against the Strata
company themselves for failing to act…. that should give them enough of a
jimmy-along to get off their big fat…. and enforce Strata Law properly.
23/01/2011 at 1:58 pm #12365
Jimmy-T
Keymaster
Unfortunately CTTT rulings do not create a legal precedent – as anyone who has been on the wrong end of some of their bizarre u-turn decisions will attest. This decision needs to be tested in the Supreme Court, where legal precedents can be established.

CTT adjudicators are supposed to use previous decisons as a guidline – but then they are supposed to be able to apply logic and commonsense too and that is all too often completely lacking.

What we need is for someone to take up legal cudgels on behalf of this resident and not only claim for a decision but demand damages as well. That would by-pass the CTTT (who can't award costs or damages) and propel the case to the Supreme Court where the “right” to pollute your neighbours' homes could be measured against the selfish luxury of wanting to breathe fresh air.

Isn't there an anti-cancer, anti-smoking organsiation around to get behind this? I would have thought it was a no-brainer.

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.
23/01/2011 at 5:44 pm #12366
Anonymous
Winston Smith said:

Last year our Executive Committee passed a by-law banning smoking not only on all the common property of the building (balconies, footpaths, car park etc) BUT in each unit too! The also passed a by-law banning the use of BBQ’s on the property.

Your kidding about the ban on BBQ use on a balcony right?

So unAustralian.
23/01/2011 at 8:11 pm #12368
Anonymous
He should ring the Cancer Council Helpline on 13 11 20. They have a legal service for people affected by cancer.
24/01/2011 at 7:16 am #12371
Jimmy-T
Keymaster
singleejk75 said:

Your kidding about the ban on BBQ use on a balcony right?
So unAustralian.

I think the “right to pour toxic fumes and the stink of burning weeks-old fat into your neighbours home (while your balcony door stays firmly closed)” was lost in John Howard's rewritten constitution along with “mateship” (aka the right to take bribes from and do favours for business cronies). “UnAustralian” is the last refuge of the drongo. NB: dozens of buildings ban barbies on balconies … and if we ever get a government with a spine, it will too.

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.
08/04/2011 at 3:25 pm #12641
Anonymous
Winston Smith said:

Last year our Executive Committee passed a by-law banning smoking not only on all the common property of the building (balconies, footpaths, car park etc) BUT in each unit too! The also passed a by-law banning the use of BBQ’s on the property. We’ve had a couple of smokers try to breach the by-law, and in response, the EC sent them letters informing them that if they continue to break the by-law, not only do they risk having their lease terminated, but they also risk being fined for breach of by-law (i.e. being issued with a Notice to Comply with a By-Law, that carries a penalty of $550) and will even be charged for any damage caused to their unit and the common property, such as having the walls repainted, carpet dry cleaned etc. Listed below are the two by-laws in case anyone else would like to use them in their strata scheme:

1. By-law prohibiting smoking on the premises:

(i) The owner or occupier of the lot must not smoke nor allow smoking within a lot or within the common property.

(ii) Without limiting para (i), the owner or occupier of a lot must not allow any

invitee to his lot to smoke within the lot or upon the common property.

2. By-law prohibiting the use of BBQ’s on the premises:

No owner or occupier of a lot may use (nor allow any other person including their invitees to use) any cooking device including any form of barbeque – whether gas, electric or otherwise – on any balcony or terrace forming part of their lot or elsewhere on the common property.

For anyone insterested in using either by-law in their own strata scheme, I recently tracked down the contact details of the company that originally drafted the by-laws for us, so it's best to get your EC/managing agent to contact them if you wish to use them yourself:

J S Mueller & Co
1st floor
240 Princes Highway
Arncliffe NSW 2205
0295621266
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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.

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.