LEGAL EASE
Some caution about THAT smoking decision In December 2021, an adjudication from the BCCM Office ordered that a unit owner in Artique, Surfers Paradise on the Gold Coast be restrained from smoking cigarettes on her balcony, on the basis that smoke drift was causing a hazard (as defined by s.167 of the BCCM Act) to an adjoining owner. Some caution ought to be given to the decision, as it may not set a precedent binding all other schemes, principally because the outcome largely appears to have resulted from admissions made by the restrained owner. That is a matter of causation. The adjudicator was sympathetic to the applicant, finding in the reasons, when referring to a NSW tribunal decision, that there was no medical or scientific dispute that the inhalation of either primary or second-hand smoke can cause risk of adverse
The body corporate took the view, that this was a dispute between two owners, and did not issue a by-law contravention notice Peter George, Partner, Short Punch & Greatorix Lawyers
health effects (see Sheath v Whitely [2014] NSWCATCD 44) It appears that the findings in this matter may have application to other strata hazards and nuisances. However, an applicant will still have to discharge the onus of proof that the complained of conduct has been caused by a respondent and emanates from a respondent’s lot. In the absence of admissions, the circumstances of the determination of any application will depend upon the available
evidence. It is accepted that where the evidence supports a finding that cigarette smoke has emanated from one lot to another, that the smoke drift constitutes a hazard, and therefore can result in an order restraining the owner or occupiers of the lot causing the hazard.
could not be made against the restrained owner.
What if the smoke drift had come from a different source? The same evidence requirements must necessarily apply to other alleged nuisances and hazards.
In the instant case, the adjudicator was not satisfied that the applicant had provided sufficient objective evidence to establish a nuisance, although without admissions by the respondent, a finding
If the nuisance or hazard cannot, on an evidence basis, be attributed to a particular respondent, then the proceeding against that respondent ought not succeed. Another matter that should not be overlooked is the role of the committee of the body corporate. In this case, the body corporate took the view, that this was a dispute between two owners, and did not issue a by-law contravention notice.
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It is observed that the body corporate could have but did not seek more evidence to assist the body corporate in making a decision concerning the issue of a By-law Contravention Notice.
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MANAGEMENT
The take away from the decision is that the adjudicator considered it was the obligation of the committee to seek more information to make a decision in the context of compliance with the by-laws. Therefore, reading the reasons, the body corporate ought to take a more inquisitorial role in deciding whether or not there has been a breach of the by-laws. ResortNews | February 2022
