Smoking and Strata

Can you ban smoking in strata without a by-law?

In a series of NCAT cases, several owners corporations succeeded in obtaining orders to prohibit or restrict smoking in strata buildings. These cases all shared a common element: the smoke from cigarettes or tobacco products was deemed a nuisance interfering with a residents’ amenity, contrary to section 153 of the Strata Schemes Management Act 2015, which prohibits residents from using or enjoying their lots in a manner or for a purpose that causes a nuisance or hazard to another resident.

This raises an important question: should owners corporations introduce by-laws to ban or restrict smoking?

The answer is “Yes” if they aim to streamline the process of prohibiting or restricting smoking in their buildings.

Without such a by-law, owners corporations may lack standing to apply to NCAT for orders against smoking residents since they themselves have not directly suffered from the nuisance (The Owners – Strata Plan No. 2245 v Veney [2020] NSWSC 134) a precedent on parking which concluded the ‘mere inconvenience’ faced by the affected owners was insufficient to establish a private nuisance).

In addition, the owners corporation must also prove that the smoke penetration unreasonably and substantially interferes with the use and enjoyment of other lots – which could be challenging to prove.

In contrast, with a smoking by-law in place, owners corporations can enforce it by demonstrating residents’ breach of the by-law. A breach of by-laws is significantly easier to prove.

Smoking by-laws

Section 9, Schedule 3 of the Model By-Laws in Strata Schemes Management Regulation 2016 addresses smoke penetration. These model by-laws aim to address and regulate smoking in strata schemes, offering flexibility to strata communities to either entirely prohibit smoking or restrict it to designated areas, thus mitigating the potential for smoke-related disputes and conflicts.

Option A

(1) An owner or occupier, and any invitee of the owner or occupier, must not smoke tobacco or any other substance on the common property.
(2) An owner or occupier of a lot must ensure that smoke caused by the smoking of tobacco or any other substance by the owner or occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot.

Option B

(1) An owner or occupier of a lot, and any invitee of the owner or occupier, must not smoke tobacco or any other substance on the common property, except—
(a) in an area designated as a smoking area by the owners corporation, or
(b) with the written approval of the owners corporation.
(2) A person who is permitted under this by-law to smoke tobacco or any other substance on common property must ensure that the smoke does not penetrate to any other lot.
(3) An owner or occupier of a lot must ensure that smoke caused by the smoking of tobacco or any other substance by the owner or occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot.

If Option A were adopted, residents would be allowed to smoke within the confines of their apartments as long as they take measures to ensure that no smoke escapes into other apartments or common areas. This option focuses on preventing smoke from infiltrating shared spaces and bothering other residents while allowing individuals to smoke within their private units. It places the responsibility on each apartment owner or occupier to manage the smoke within their own space to maintain a smoke-free environment in common areas and neighbouring lots.

What happens when a smoking by-law is violated?

If residents fail to adhere to smoking by-laws, resulting in a nuisance or hazard due to smoking or smoke drift, an owners corporation can take a stepwise approach.

The first step is always to approach the residents directly, as they may not be aware their smoking is causing issues for other residents.

If this step fails and the smoke drift continues to cause a nuisance, the strata committee can issue a Notice to Comply.

If compliance notices are not being followed, the owners corporation can apply to NSW Fair Trading for mediation. They can then escalate the matter by filing an application with the NSW Civil and Administrative Tribunal (NCAT).

NCAT has the authority to impose substantial fines. For individuals in breach of the smoking by-law, strict penalties may apply, with fines of up to 10 penalty units ($1,100). Repeat offenders who violate the smoking by-law again within 12 months of their initial fine could face double the penalty, amounting to $2,200.

An owner’s corporation does not have to give another notice before contacting the Tribunal again. If a resident continues not to follow an order the Tribunal, they can be fined up to $5,500.

Both tenants and owners retain the right to request a hearing before NCAT if they believe the owners corporation’s actions regarding nuisance smoking have been unreasonable.

If you are having issues with smoke drift, contact your Strata+ Strata Manager.

*Gisks v The Owners – Strata Plan No. 6743 [2019] NSWCATCD 44

Pittman v Newport [2022] NSWCATCD 173

Shaw v Euen [2023] NSWCATCD 68