Back in 2015, we outlined that there may be new changes to the New South Wales strata laws regarding the definition and addressing of nuisance smoke. As of 30 November 2016, these laws are indeed in place. What are these new strata laws affecting smoking in NSW apartment blocks, and are they likely to stop you smoking on balconies or within your unit?
By now, your strata scheme should have reviewed its model by-laws regarding issues such as nuisance smoking, parking and pets. Some strata schemes will have voted to be 100% smoke-free. Others will allow smoking on common property or at designated locations to avoid smoke drift from balconies. This will depend entirely on the decisions of your individual strata scheme.
Section 153 of the current Strata Schemes Management Act 2015 states that an owner, tenant or occupier of a strata scheme lot must not use common property in a way that interferes with others’ use of the common property or their lot. It also contains this key definition:
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Depending on the circumstances in which it occurs, the penetration of smoke from smoking into a lot or common property may cause a nuisance or hazard and may interfere unreasonably with the use or enjoyment of the common property or another lot.
The fact that smoking on common property can be classed as a nuisance also enables strata committees to take action if smoke drift does become an issue. If an owner or resident is failing to keep their smoking behaviour within the by-laws, the strata committee can choose to issue a Notice to Comply with a By-Law. If this fails to curb the nuisance smoking, the owners corporation can apply to the NSW Civil and Administrative Tribunal (NCAT), which may choose to issue a monetary fine. Tenants and owners also have the right to apply for a hearing by NCAT in regards to nuisance smoking.
For landlords, there is also an obligation to take all reasonable steps to ensure your tenants are not impacted by nuisance smoke from neighbours. Tenants have won cases against landlords after experiencing smoke drift from neighbouring lots and smoke damage within the rented unit. Once again, NCAT is able to hear and settle these types of nuisance smoke disputes.
If your by-laws allow it, you’ll be able to smoke cigarettes on common property as long as the smoke isn’t causing a problem for other residents. Just be considerate and aware of where that smoke could be drifting to, or you could face unwanted hassles.