Can strata ban smoking in New South Wales?

One of the most common disputes strata managers often face is cigarette smoking or second-hand smoke drift, especially as more people are now working from home. Not only can smoking cause fire hazards and be a nuisance to neighbouring tenants, smoking can also increase the property repair and cleaning costs. It can also make it harder to let out the property to new tenants once a lease expires.

Can strata ban smoking - The Strata Collective

Lot owners can sometimes find it difficult to deal with tenants smoking in strata buildings, but having the right strata management company who understands the strata laws will help.

Fortunately, in November 2016, the NSW Strata Schemes Management Regulation introduced new model by-laws for smoking in residential strata schemes, giving more power to strata schemes and possible fines if by-laws are breached.

This by-law has two options for the owners corporation or body corporate to choose between in regards to smoke penetration. Strata schemes can choose to be completely smoke free or prohibit smoking, or can restrict smoking by putting in place designated smoking areas to stop smoke drift from balconies.

Option A: An owner or occupier must not smoke on the common property

  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: An owner or occupier can only smoke on designated areas on the property

  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:
    • in an area designated as a smoking area by the owners corporation, or
    • 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.

What happens when a smoking by-law is breached?

If residents or owners in New South Wales are failing to comply to these model by-laws and are causing a nuisance or a hazard through smoking or smoke drift, the owners corporation can firstly issue a Notice to Comply. If this notice fails to stop residents or owners smoking on their lot or common property or in the designated smoking areas of a property, the owners corporation can make an application to the NSW Civil and Administrative Tribunal (NCAT) which can issue a hefty monetary fine. Residents in breach can receive strict fines with penalties of up to 10 penalty units ($1,100), whilst a repeat offender who breaches the smoking by-law again within 12 months of their initial fine can be fined double $2,200.

Owners who are found in breach of the occupancy limits set out in the legislation are potentially liable to fines of $5,500 and $11,000.

Tenants and owners also have the right to apply for a hearing by NCAT in regards to nuisance smoking if they believe the owners corporation has been unreasonable.

If you require any assistance with nuisance smoking within your NSW strata scheme, or are looking for a strata management Sydney company, The Strata Collective is here to help.

The Strata Collective

Level 3, 3 Spring St
Sydney, NSW 2000

Ph: 02 9137 2320

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SCA NSW Strata Community Awards 2018
«Small Business Award»

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See the full story and photos here.

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