Welcome to our exclusive column by Chris Irons, Dear Strata Solve, untangling your strata problems.

Volume 2

Dear Strata Solve

So smoking is now outlawed in QLD strata, right? That’s what I think I saw and heard in the media recently. And even if it isn’t it should be. I’ve got a couple of neighbours smoking like a chimney day in, day out and it is driving me nuts. Can’t something be done about it?

Regards, Coughing in Coorparoo

Dear Coughing,

Something can be done about it, although I’m afraid to say smoking has not been banned. Smoking is a legal activity, albeit a heavily regulated one in strata.

You’ve heard so much about smoking recently because of this decision in late 2021. It was, in the humble view of Strata Solve, a game changer, as for the first time, we got a benchmark of what constitutes a ‘hazard’ in strata. Section 167 of the Body Corporate and Community Management Act 1997 provides for both nuisance and hazard in a body corporate. Up to this point, smoking had been difficult if not possible to prosecute as a nuisance due to the high threshold set by a very well-known Court case. Hazard, though, hadn’t really been looked at. Now it has, with an adjudicator declaring that the second-hand smoke from one owner was causing a hazard for their upstairs neighbour.

The consequence was that the adjudicator ordered the smoker to cease smoking on their balcony and take reasonable steps to ensure smoke did not drift to their neighbour’s lot. Given smoke is not a solid mass, we are not sure what steps could be taken, other than to not smoke at all – which is, we suppose, the point of your query. Importantly though, this is not a blanket decision. Adjudicators are not bound by precedent and will always consider disputes on a case by case basis. In effect, what you do have now is an avenue to do something about smoking where you did not have it previously.

That’s only one part of this case. The other significant finding was that the committee had erred in not doing something about this dispute (it had been going on a long time). The adjudicator chastised the committee for throwing their hands up and saying that it was between the two owners to sort out. Committees have a legislated responsibility to act reasonably and we think this case highlights that if a dispute is long-running and causing dysfunction at a scheme, then it is ‘reasonable’ that the committee do something about it. Exactly what they do is much harder to pin down. We think the answer lies with getting in early, trying to prevent disputes from escalating and using some sound communication and intervention techniques to nip things in the bud. That can and does work with smoking disputes.

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