Smoking in body corporates to be stubbed out?

A new interpretation of the Body Corporate Act opens the prospect of greater smoking restrictions in body corporates

While smoking is generally being eased out of most parts of society, it has long been a vexed issue in Queensland body corporates as the legislation has failed to keep up with imposing the wider restrictions that have taken place in workplaces and public spaces.

That may be about to change following an adjudicator’s order in the case Artique [2021] QBCCMCmr 596, which found smoke drift from one unit to another can be deemed as a hazard and that the owner responsible for creating the hazard was also responsible for preventing it.

It’s the word ‘hazard’ that is critical here. The case revolved around section 167 of the Act and a smoking regulation by-law that the scheme involved had in place.

The Act states:

167 Nuisances

The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that—

1. causes a nuisance or hazard; or
2. interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
3. interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

So, by implication, any owner undertaking an activity in their lot that interferes with another lot – playing loud music, having a dog that barks or in this case allowing smoke to pass from one lot to another – could be deemed in breach.

In practice though, particularly when it comes to smoking, multiple cases using this argument have been heard only to be defeated. This time was different as the adjudicator considered the smoke drift to be an active hazard and cited the widespread evidence of this in making their determination. In this view, the smoke drift is no longer something that is merely annoying but is something that is actively dangerous. Welcome to 2022.

And, in finding that the smoker was acting dangerously, the adjudicator also found that the smoker now needed to take action to stop the smoke drifting to their neighbour’s unit again, ordering:

“That the respondent must not smoke on the balcony of Lot 805. If the respondent wishes to smoke within the interior of her lot, I will require her to take reasonable steps to ensure that smoke drift does not affect neighbouring lots. That does not necessarily mean she can only smoke within her lot if all windows and doors are shut. Whether that is necessary will depend on where the respondent is smoking within the lot and her proximity to windows and doors.”

If the occupant fails to adhere to that, they can be referred to a magistrate’s court to have the order enforced.

What happens next?

As ever, the big question is what now, but there are probably more questions than answers.

It’s important to remember that this is a finding in one case by one adjudicator only. The next case or next adjudicator could see things differently. If the matter goes to a magistrates court the ruling might not be supported there. The decision could be viewed as unreasonable. After all, smoking is still legal and if people can smoke in private houses why can’t they in body corporate? When it is a question of the rights of one individual versus another it’s always difficult to establish where the line should be drawn.

Still, there are many grounds for optimism, at least if you are a non-smoker. There is now a precedent in support of preventing smoke drift and as smoking is in its end game as a social practice it seems less likely there will be many findings in favour of smokers. This kind of outcome seems more likely to be a standard rather than an outlier.

The ruling also opens up the possibility of making it easier to pursue other nuisance claims as hazardous. Covid is the big one here as its status as a hazard is clear. Until now the advice has mostly been that body corporates can’t introduce possibly discriminatory practices such as preventing unvaccinated people from attending meetings. Perhaps this ruling casts that advice in a new light. Owners may also look to describe any issues that affect their sleep or well-being as hazardous rather than just a nuisance. Would an argument that loud music at night is affecting your sleep and thus your health making it hazardous hold up in court? It certainly seems possible.

Do we need a by-law?

For body corporates looking to take action on smoking, the obvious route to do this is now through enforcing or having a by-law that specifically restricts the practice. If you already have one in place, this case can now be cited when issuing a warning or breach notice and will likely give the recipient some pause for thought. If you take the matter further, there is more confidence you can succeed.

If you don’t have a by-law in place, you can still cite the Act. It’s not strictly necessary to get a by-law on that basis, but it may well be worthwhile if you really want to underline to owners what the expectations are – it’s easy for people to say they don’t know the Act but much harder to say the same for the by-laws.

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For more on smoking regulation in Queensland, the Cancer Council has detailed information on its website: Anti Tobacco Legislation

To ask about smoking or getting a No Smoking By-law at your scheme contact your manager:

Tammy Lynch: tammy.lynch@towerbodycorporate.com.au P: 0466 156 765
Samantha Morrison: samantha.morrison@towerbodycorporate.com.au P: 0434 670 058
Kelly Borell: Kelly.borell@towerbodycorporate.com.au P: 0435 766 852
Will Marquand: will.marquand@towerbodycorporate.com.au P: 0427 125 656