Warning: Smoking is a hazard for strata dwellers

Tobacco smoke drifting from one balcony of a strata property to another has been deemed hazardous and could find people banned from smoking on their unit balconies. 

This follows a landmark ruling by the Office of the Commissioner for Body Corporate and Community Management (BCCM). 

The BCCM Adjudicator ruled that tobacco smoke drifting from the balcony of one lot into a neighbouring lot was a hazard in contravention of section 167 of the Body Corporate and Community Management Act 1997 (Qld)*. 

It follows a complaint from a Surfers Paradise strata occupant about the cigarette smoking by a neighbour on the balcony below**. 

The complainant said the smoking was a “nuisance” but the Adjudicator found that the complainant had not provided sufficient objective evidence of a nuisance. 

However, the Adjudicator went significantly further, finding that the second-hand smoke drift constitutes a health hazard and banned the neighbour from smoking on the unit’s balcony. 

It ruled that if the respondent smokes within the lot then reasonable steps must be taken to ensure that smoke does not affect others.

There have been numerous complaints to the BCCM over the years about smoke drift but little has come from it - until now. 

It’s expected the ruling will make it easier for strata occupants to complain about smoke drift and possibly lead to a major increase in complaints. 

However, the Commissioner is likely to seek consolatory talks before banning an occupant from smoking on their balcony. 

The ruling covers “tobacco products” and could mean it covers vaping. However, it will not include such things as smoke from barbeques. 

According to Strata Community Association (Qld) President Kristi Kinast, the ruling has lowered the bar on the proof required to stop smoking on balconies. “This adjudication is the biggest change to body corporate law in Queensland in the past two decades and will make it much easier for communities to ban smoking on balconies, all they will have to do is prove that smoke drifts from one balcony to another,” she said.

*The decision is Artique [2021] QBCCMCmr 596 and is accessible here. It has not been published on Austlii yet.
** https://www.realestate.com.au/news/unit-owner-barred-from-smoking-on-their-balcony-and-the-decision-that-will-reverberate-through-qld-experts-say/?rsf=syn:news:nca:cm:article

This article has been written referencing information from SCA QLD and https://www.realestate.com.au/news/unit-owner-barred-from-smoking-on-their-balcony-and-the-decision-that-will-reverberate-through-qld-experts-say/