Bad news for smokers living in apartments after tribunal win

The ability to smoke, use a barbecue, use chemicals and even have a pet in your own home could be at risk after a landmark decision.

The ability to smoke, use a barbecue, use chemicals and even have a pet in your own home could be at risk after a landmark decision.

The ability for smokers to puff on a cigarette in the comfort of their own home could be at risk after a significant decision in a NSW court.

And it could become even more extreme with cooking smells and use of barbecues on balconies also facing bans.

That’s according to a strata management expert who is issuing the warning in the wake of a hearing which could set a precedent for future cases.

On Thursday, The Sydney Morning Herald reported that residents in NSW’s north were locked in a bitter feud because one couple smoked, causing the smoke to drift upwards to their upstairs neighbours.

Brenton Pittman and Lynette Cartwright from Kingscliff in the Northern Rivers region took their downstairs neighbours, Des Newport and Carmen Traynor to the NSW Civil and Administrative Tribunal (NCAT), which ultimately ruled in their favour.

The couple accused their neighbours of smoking on the balcony and said it drifted up to them and even leaked through air vents, even if they closed their doors and windows and used a fan and air purifier.

Since the ruling, the neighbours or any guests they bring over are no longer allowed to smoke on their balcony and they are reportedly looking to sell their unit.

It’s opened the door to possible statewide bans, and also could expand the scope of what isn’t allowed in a shared apartment complex, according to experts.

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It’s bad news for smokers. Picture: istock

Strata Communities Association President Stephen Brell warned that the tribunal’s outcome could set a dangerous and controlling precedent for residents in apartment buildings in the future.

“What my concern there would be is owners and owners corporation taking it a step further and doing things like trying to ban cooking smells and barbecues on balconies, that sort of thing,” Mr Brell told 2GB.

With enough “pressure” and cases like this, he said it could be possible for NSW to issue a statewide ban on smoking in balconies of apartment buildings.

Yet, even without government intervention, the future wasn’t looking bright for smokers.

Mr Brell explained how individual strata blocks can set their own rules, known as bylaws, which must be followed and could only be challenged in a court of law.

“If an owners corporation did pass a bylaw banning you from smoking in your lot, then by virtue of that you’d be banned from smoking on your balcony,” he said.

These bylaws could be abused to ban barbecue use on balconies and even certain cooking smells in a block of units.

In January this year, a similar case was won in Queensland, when a body corporate watchdog ordered a Gold Coast unit owner not to smoke cigarettes on her balcony after a neighbour’s complaint.

Archers the Strata Professionals Cairns partner Stephen McCulloch told The Cairns Post at the time the decision could open the flood gates to all kinds of abuse about potential “risks” in an apartment complex.

“Basically anything that could be hazardous is potentially caught up in this decision as well not just smoking,” he said, which could include pet hair, some chemicals, barbecue use or in an extreme example, consumption of alcohol.

An ashtray on a balcony.

The rules could potentially be abused to stop barbecues being used on balconies.

NSW’s laws changed in 2015 to classify smoking as a “nuisance” in apartment blocks, according to Mr Brell.

“What the law states at the moment is that if you’re a smoker you must take reasonable steps to ensure that your tobacco smoke not drift and cause a nuisance on someone else’s property,” he said.

He also pointed out nuisances is what most apartment residents complain about to Strata, including smoke drift.

“These particular cases getting to a tribunal is pretty rare. However, causing a nuisance is quite common,” Mr Brell told the radio station.

“Cigarette butts being flicked off balconies and things like that — that’s a common complaint to Strata managers.”

If residents had the time and inclination, they could also try to set their own rules through a NCAT tribunal, as Mr Pittman and Ms Cartwright did in this case.

Court documents

NCAT documents obtained by news.com.au showed that Mr Pittman and Ms Cartwright ultimately won their case because the tribunal deemed their neighbours’ actions as a nuisance.

Senior member P French said in a decision handed down in October that the respondents “must not cause or permit any other person to smoke tobacco products on the balcony of their lot” because it caused a “nuisance or hazard” to their neighbours.

They originally won their case but then Newport and Traynor won in an appeal. They initiated the case again and had a favourable decision handed down in October this year.