Can an occupant be restricted from smoking in their own lot? Gisks v The Owners – Strata Plan No 6743

Background

Between 2015 and 2017 the applicant lot owner constantly complained to the owners corporation about receiving second-hand tobacco smoke drift from a neighbouring lot 7. The smoke came into his living room and kitchen through windows and doors and in all of the rooms within his lot.

The owner of lot 7 admitted that she smoked in her lot although she tried to prevent smoke drift by closing her windows and doors.

The evidence indicated that the owners corporation did not consider lot 7’s smoke penetration complaints to be a matter which concerned them as it only affected one lot owner. There also did not appear to be a  by-law that dealt with smoking in the building.

The owner of lot 7 claimed that the smoke drift was a nuisance or a hazard and breached section 153 of the Strata Schemes Management Act 2015 (“SSMA”) which states that: “An owner .. of a lot in a strata scheme must not … permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot…”.

Decision 

The NSW Civil and Administrative Tribunal held that:

1. The smoke drift that emanated from lot 7 and entered into lot 5 was a hazard for the same reasons as found by Senior Member Buckley in Bill Sheath and Rhonda Sheath v Rick Whitley and Sandra Whitley.

2. The smoke drift that emanated from lot 7 and entered into lot 5 was also a nuisance because it was an interference with the lot owner’s use and enjoyment of his lot which was substantial and unreasonable.

3. The fact that the other lot owner complained of the issue of smoke drift from 2015 to 2017 indicated that his complaints were not trivial or lacking in a serious element. The evidence also indicated that his concerns had not been properly addressed by the owners corporation.

4. An order pursuant to section 241 of the SSMA should be made to restrict where the owner of lot 7 can smoke in her lot. She must not smoke on the balcony or in the bedrooms and must close all exterior doors and the windows to bedroom 1 and 2 and the bathroom window when smoking in her lot.

Disclaimer: Please note that the information contained in this article is not legal advice and should not be relied upon. You should obtain legal advice specific to your circumstances before you take any action or otherwise rely upon the contents of this article.