New Queensland strata laws see smoking effectively banned on unit balconies

A woman who has been told she must stop smoking on the balcony of her Surfers Paradise unit or face being taken to court says she has been made to “feel like an absolute criminal” in her own home. READ HER STORY

A WOMAN who has been told she must stop smoking on the balcony of her Surfers Paradise unit or face being taken to court says she has been made to “feel like an absolute criminal” in her own home.

The woman, who asked not to be named, was ordered to cease smoking on her balcony

by an Office of the Commissioner for Body Corporate and Community Management adjudicator after the owner of the unit above complained.

The woman said she smoked to “relax and de-stress”, but was no longer able to enjoy the home she splashed out six figures for 16 months ago.

“I smoke on the odd occasion. I’m trying to cut down,” the woman said.

“On the odd occasion I would sit outside on a nice morning and have a cigarette. But I mainly smoke in my unit with my doors open.

“It makes me annoyed that my rights to do what I want to do on my property are being dictated to.

“It annoys me because I pay my bills, pay the rates, and I’m being dictated to about what I can do in my own home.”

The woman said she is “annoyed” to be “dictated to” about what she can do in her own home.

The woman said she moved to the property to enjoy a “more relaxing, quiet, stress-free, laid-back life” after a number of break-ins and assaults where she previously lived.

“I’m disabled, I can’t move very well. I have a disability sticker on my car,” she said.

“There were too many break-ins and assaults in the area and I thought, for safety reasons, and I wanted to be a bit closer to my friends, I’d move into an apartment building where nobody could get to me, for safety, for security.”

The woman said she was unhappy with the suggestion she should keep her windows and doors shut when smoking. “I want to keep them (windows) open, just like everybody else,” she said.

“I feel like an absolute criminal, especially in my own home.”

‘MASSIVE CHANGE’: SMOKING ON BALCONIES BANNED

A shock decision has effectively banned smoking on the balconies of residential unit blocks in what has been described as “the biggest change to body corporate law in Queensland this decade”.

The change comes after a woman complained about smoke drifting onto her balcony at a Surfers Paradise high rise from the unit directly below her.

Gold Coast skyline. Picture: Nigel Hallett.

In a ruling handed down by an adjudicator at the Office of the Commissioner for Body Corporate and Community Management on December 21, it was found that the smoke constituted a “hazard” due to the harmful effects of passive smoking.

The smoker, a woman with a disability, was told she “must not smoke on the balcony” and, if she wished to smoke inside her unit, must “take reasonable steps to ensure that tobacco smoke emanating from her lot does not affect any person lawfully using another lot, for example by closing windows and doors.”

Strata Community Association President Kristi Kinast said the ruling represented a “massive change”.

Ms Kinast said it had previously been incredibly difficult to restrict smoking in apartments due to a high legal threshold for it to be considered a nuisance.

She said the adjudication order means that a lot owner will no longer have to prove smoking is a “nuisance” to them but rather simply that it represents a “hazard” to their health.

“Previously communities had tried and failed time and time again to see smoking on balconies ruled a nuisance, the Commissioner’s Office had always ruled that smoking was not conducted with sufficient frequency to constitute ‘nuisance’ according to the legislations,” Ms Kinast said.

“Obviously, people do not smoke for hours on end on their balcony.

“This adjudication is the biggest change to body corporate law in Queensland this decade and will make it much easier for communities to ban smoking on balconies.

“All they will have to do is prove that smoke drifts from one balcony to another.”

Smoking has effectively been banned on the balconies of unit blocks.

Grace Lawyers partner Jason Carlson said the adjudicator had effectively changed the rules after the Queensland government had been slow to act on the matter.

“In 2014, a team appointed by the (state government) to review possible changes to body corporate legislation asked Queenslanders to comment on the prospect of allowing a body corporate to ban smoking on balconies altogether,” he said.

“After significant public consultation, the team recommended in 2017 that the legislation be changed to allow a body corporate to make a by-law to completely prohibit smoking in an outdoor area of a lot or on the common property if the smoke can drift to another lot.

“The recommendation has not been implemented.”

Mr Carlson said previous attempts to have smoking on balconies outlawed had been frustrated by the high burden of proof required to demonstrate that the smoking was causing a “nuisance” under by-laws.

“In this case, the adjudicator deftly sidestepped the nuisance issue altogether and broke new ground in finding that the smoke drift is a hazard seemingly because there is no safe level of exposure to it,” Mr Carlson said.

“That is the twist to this new case – it has opened the floodgates against the act of smoking in a strata community.

“It used to be the ‘chain smokers’ being taken the Commissioner’s Office only for the health-conscious complainants to be disappointed at the high standard of evidence that is needed to prove nuisance.

“But proving the volume and frequency of smoke drift will now take a back seat.

“This decision will instead allow a change of focus to anyone who smokes – the stressed office worker having a quick puff to unwind, the cigar aficionado enjoying their monthly indulgence, or the social smoker who picks that habit back up on the weekend after a few beers.

“On this decision, the smoke that occasionally drifts from their strata unit causes a hazard to other residents.”

Ms Kinast said that while the decision to outlaw smoking on balconies would be welcomed by many, the fact that the law had in effect been changed by a single public servant was a matter of concern.

“We are currently working with the Government on reform of the legislation, however this adjudication demonstrates just how far behind community expectations the current legislation is,” he said.

“It should not be up to public servants to make what amount to fairly drastic changes in the law.”

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