In a recent case carried out by the New South Wales Civil and Administrative Tribunal (NCAT), it was found that smoke drift emanating from a lot onto a neighbouring lot is a nuisance because it is an interference with a lot owner's use and enjoyment of the lot. This ruling indicates that smoke penetration from a lot onto another lot is potentially a nuisance and hazard. But why? Because health and safety of residents and pets in a strata scheme is of primary concern in complaints made in relation to second-hand smoke, and the view that inhalation of cigarette smoke is a toxic chemical cocktail.
Section 153(1)(a) of the Strata Schemes Management Act 2015 (NSW) states that an owner, mortgagee or covenant charge in possession, tenant or occupier of a lot in a strata scheme must not: use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not). Therefore, 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.
Although other cases within the New South Wales Civil and Administrative Tribunal (NCAT) on the subject of smoking state that while smoking is not illegal and there is no legislation which prevents a home owner from smoking within the boundaries of their own home, the inhalation of smoke can cause an increased risk of adverse health effects and as such is a "hazard" pursuant. The appeal panel on one particular case summarised the definition of private nuisance as follows:
- An interference, by the defendant in his/her use of his/her land, with an occupier's use and enjoyment of his/her land - an interference can be physical damage to property or person and non-physical damage (e.g. damage caused by air pollution, vibration, noise and dust). However, the damage must at all times be to the occupier's use and enjoyment of his/her land.
- The interference must be substantial and unreasonable; and
- The test as to whether the interference is substantial and unreasonable is objective
NCAT's decision on the matter is that smoke adrift emanation from the neighbouring lot is a hazard (especially in terms of health) and a nuisance because it is an interference with the lot owner's use and enjoyment of his or her lot which is unreasonable and substantial. Overall, the tribunal is interpreting a broad interpretation of section 153 of the Act by not only considering acts (or omissions) which can cause a nuisance or hazard, but other conduct that is likely to give rise to a private nuisance liability claim. To avoid future litigious claims and proceedings by lot owners in similar situations, it is crucial that the manager of a strata scheme undertakes the following:
- Treat any complaint in a serious manner and when it first arises, as any delay by the body corporate can jeopardize its position; and
- Ensure the scheme's strata committee has put by-laws in place to address and regulate smoke penetration and drift; and
- Ensure that notices in relation to smoke penetration and drift are circulated to act as a transparency measure and supplementary to the by-laws.
This information is intended to provide a general summary only and should not be relied upon as a substitute for legal advice