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Legal Ease
Some caution about THAT smoking decision
In December 2021, an adjudication from the BCCM Offi ce ordered that a unit owner in Artique, Surfers Paradise on the Gold Coast be restrained from smoking cigarett es on her balcony, on the basis that smoke drift was causing a hazard (as defi ned 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 matt er of causation.
The adjudicator was sympathetic to the applicant, fi nding in the reasons, when referring to a NSW tribunal decision, that there was no medical or scientifi c dispute that the inhalation of either primary or second-hand smoke can cause risk of adverse
Peter George,
Partner, Short Punch & Greatorix Lawyers
health eff ects (see Sheath v Whitely [2014] NSWCATCD 44) It appears that the fi ndings in this matt er 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 fi nding that cigarett e 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.
In the instant case, the adjudicator was not satisfi ed that the applicant had provided suffi cient objective evidence to establish a nuisance, although without admissions by the respondent, a fi nding could not be made against the restrained owner.
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What if the smoke drift had come from a different source?
The same evidence requirements must necessarily apply to other alleged nuisances and hazards. If the nuisance or hazard cannot, on an evidence basis, be att ributed to a particular respondent, then the proceeding against that respondent ought not succeed. Another matt er that should not be overlooked is the role of the committ ee 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.
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. The take away from the decision is that the adjudicator considered it was the obligation of the committ ee 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.
