In breaking news, a Body Corporate and Community Management (BCCM) Adjudicator must have tired of waiting for the Queensland Government to change the legislation, so decides to change how it is applied herself!

Introduction

On 21 December 2021, an Adjudicator decided to give many stakeholders in the strata industry an early Christmas present – she broke into new ground by pathing the way to order someone to no longer smoke on the unit’s balcony and to take reasonable steps to ensure smoke does not emanate from the unit when smoking inside (by closing doors and windows).

Here’s the catch: the Adjudicator found that there was not enough objective evidence to establish that the smoking was causing a nuisance.

Instead, the Adjudicator did what so many have been waiting for the Queensland Government to do, in a strata context, for more than a decade: she found that tobacco smoke drift is a hazard and there was no safe level of exposure to it, so others in the strata community must not be exposed to it any longer.

Background

“Simple it’s not, I’m afraid you will find,

            for a mind-maker-upper to make up his mind.

            You can get so confused

            that you’ll start in to race

            down long wiggled roads at a break-necking pace

            and grind on for miles across weirdish wild space,

            headed, I fear, towards a most useless place.

            The Waiting Place …

                                   … for people just waiting.”

                       Dr. Seuss, “Oh, The Places You’ll Go!”

 

On 12 May 2009, an owner of two lots in a Queensland strata scheme, John Hogan, filed an adjudication application against his neighbour of ten years, Cleis Norbury, seeking an order that his neighbour comply with section 167 of the Body Corporate and Community Management Act 1997 (Qld) (BCCM Act).

Mr Hogan complained of Ms Norbury’s persistent smoking.  He explained that he is highly sensitive to cigarette smoke and suffers serious sinusitis, and a previous tenant suffered from macula degeneration and was forced to move out due to the smoke drift.  Ms Norbury in turn alleged that she had been forced to move her smoking to her carport as Mr Hogan had “hosed her once or twice”.

On 18 August 2009, an Adjudicator ordered Ms Norbury to take reasonable steps to ensure smoking cigarettes on her lot or common property does not cause a nuisance to Mr Hogan or interfere unreasonably with his use or enjoyment of his lot.

Ms Norbury appealed to the appeals division of the Queensland Civil and Administrative Tribunal.  The Tribunal’s President of the time allowed the appeal, finding:

“Mr Hogan’s particular sensitivity to cigarette smoke must be considered in light of ordinary notions of reasonable standards for the use and enjoyment of a Lot. Smoking cigarettes in one’s own premises remains a lawful activity. Although there is natural sympathy for Mr Hogan’s particular circumstances it does not follow that an ordinary person, without his sensitivities, would also find that cigarette smoke constitutes an unreasonable interference.

Once that is acknowledged, a finding that s 167 is offended could only be made, in the circumstances arising here, if it was established that the cigarette smoke emanating from Lot 2 is of such volume or frequency that it would interfere unreasonably with the life of another lot owner of ordinary sensitivity.”[1]

The matter was sent back to the Adjudicator to be determined again.  Mr Hogan explained that it would be “a long and difficult task for him to substantiate the possible effect passive smoking has been proven to have on people’s health”, but he believes “the smoke is a hazard and a nuisance.”

The Adjudicator wrote to Mr Hogan and asked that he consider engaging a person to, for example, “assess or monitor air quality … to establish that the cigarette smoke emanating from Lot 2 is of such a volume or frequency that it would interfere unreasonably with the life of another lot owner of ordinary sensitivity.”

Mr Hogan would have been at a loss to figure out how he could have monitored air quality to jump the bar the Tribunal set so high to prove the cigarette smoke is a nuisance or hazard.  His application was ultimately dismissed on 24 November 2010.

In 2012, it was argued that it is not the volume or frequency of smoking that should be of concern, but the fact that it has to be endured at all in a dense residential environment.[2]  That challenge was also dismissed after another Adjudicator found that the complainants had not provided any evidence of the volume or frequency of smoke entering their lot.

The Adjudicator did, however, note her appreciation that it may be difficult to find a commercially available machine to measure the quantity of smoke, but also explained that the applicant had not given any subjective evidence either.

In 2014, the team appointed by the Queensland Government to review possible changes to body corporate legislation asked Queenslanders to comment on the prospect of allowing a body corporate to ban smoking on balconies altogether.[3]

After significant public consultation, the team recommended in 2017 – more than four years ago – that the legislation be changed to allow a body corporate to make a by-law to completely prohibit smoking in an outdoor area of a lot or on the common property if the smoke can drift to another lot.  The recommendation has not been implemented.

We have been in The Waiting Place for years.

The latest decision

In early 2021, new BCCM regulation modules took effect, but none of the changes in these regulations touched on any of the supposedly controversial and potentially divisive issues that go to the core of different human beings living together in a dense residential environment.

On 21 December 2021, an Adjudicator decided to give many stakeholders in the strata industry an early Christmas present by attempting to break us out of The Waiting Place, at least with respect to smoking.

In Artique [2021] QBCCMCmr 596, the applicant gave her account of her neighbour being a chain smoker spending about five minutes smoking a cigarette and doing so every 20 to 40 minutes.  From reading the reasons for decision, it seems the applicant gave this evidence in her submissions and did not have to source a “commercially available machine to measure the quantity of smoke.”

The Adjudicator recounted the developments of NSW adjudicators on the issue who had often accepted smoking in a strata community to be a nuisance and a hazard.  She referenced an NSW adjudicator finding almost 8 years ago: “The inhalation of second-hand smoke is a hazard. It is adjudged as such by public health legislation.”[4]

The Adjudicator in Artique then:

• Referenced a two-page pamphlet created by Queensland Health as evidence that “the harm from second-hand tobacco smoke is sufficiently widely accepted that the applicant does not need to provide medical evidence to establish it.” That Queensland Health pamphlet is accessible here.
• Referenced the content of a website page of the Australian Government – Department of Health as evidence that the risk of harm is serious and that there does not appear to be a safe level of exposure to second-hand smoke. That page is accessible here.
• Attempted to guard her decision from an appeal while trying to keep confidence in the last 11+ years of adjudication decisions on the issue of smoking by finding that the applicant had not provided sufficient objective evidence as to the volume and frequency of the smoke drift to establish it was a nuisance.
• Found, instead, that the smoke drift constitutes a hazard.
• Ordered that the respondent must not smoke on the balcony and may only smoke elsewhere within the lot if reasonable steps are taken to ensure that smoke emanating from her lot does not affect any other person, such as by closing windows and doors.

What this means

Section 167 of the BCCM Act provides (my emphasis):

The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that—

• causes a nuisance or hazard; or
• interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
• interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

In Artique, the Adjudicator deftly sidestepped the nuisance issue altogether and broke new ground in finding that the smoke drift is a hazard seemingly because there is no safe level of exposure to it.

That is the twist to this new case – it has opened the floodgates against the act of smoking in a strata community.

It used to be the “chain smokers” being taken the Commissioner’s Office only for the health-conscious complainants to be disappointed at the high standard of evidence that is needed to prove nuisance.  But proving the volume and frequency of smoke drift will now take a back seat.

This decision will instead allow a change of focus to anyone who smokes – the stressed office worker having a quick puff to unwind, the cigar aficionado enjoying their monthly indulgence, or the social smoker who picks that habit back up on the weekend after a few beers.  On this decision, the smoke that occasionally drifts from their strata unit causes a hazard to other residents.

What this says about the strata sector

Strata is still a relatively new way of living.  The reception of our Sydney office has a copy of the first strata title plan registered in New South Wales in 1961.  That was only 60 years ago.  Many of the readers will have lived through the birth of strata title.

More than a million Queenslanders live in strata properties.  The introduction of the BCCM Act in 1997 made Queensland a leader and innovator in strata law across Australia and even the world.  But the world has changed since then.  25 years ago, the Government could not have envisaged that battery-operated motor vehicles would be sought-after, or that an apartment could be let to a stranger without the involvement of a property manager by the simple touch to the screen of an internet-activated mobile phone.

New South Wales and Victoria have quickly caught up and both states made significant legislative changes in recent years, while Queensland legislative reform has languished through changes in government.

In Artique, an Adjudicator did what many have been waiting for the Queensland Government to do for more than a decade: she found that tobacco smoke drift is a hazard and there was no safe level of exposure to it, so others in the strata community must not be exposed to it any longer.

Many reading this might wonder how one person – an Adjudicator in the Commissioner’s Office – can make a decision that interferes with a person’s right to smoke cigarettes in their own home.  12 years ago, the (then) President of QCAT described this as a lawful activity so long as it did not unreasonably interfere with another.

Adjudication decisions do not create any binding precedent.  Different adjudicators can reach a different view of the law on a similar set of circumstances.  However, in my experience, adjudicators prefer to follow the decisions of fellow adjudicators.

There are many different adjudicators in the Commissioner’s Office.  The adjudicator who made the decision in Artique is very experienced, well respected and a former Acting Commissioner for Body Corporate and Community Management.  Her decision will be followed by other adjudicators unless it is overturned on appeal to QCAT or the Government (finally) changes the legislation.

Some reading this might think that this new decision goes too far and infringes too greatly on the sanctity of a person’s home.

Over the last two decades, Queenslanders who choose to smoke have been sent outside the workplace, told that they can no longer smoke inside clubs and pubs, herded into tiny rooms of international airports while awaiting their flight, and generally sent to the far corners of any social setting.

I can’t recall any great public outcry over the progressive marginalisation of smoking over those years.  I doubt there will be any great outcry over this continuation of the trend.

 

References:

[1] Norbury v Hogan [2010] QCATA 27 at [27].

[2] Carson Place [2012] QBCCMCmr 503 at [26].

[3] Queensland Government Property Law Review Options Paper, Body Corporate governance issues: By-laws, debt recovery and scheme termination, 15 December 2014, paragraph 2.4.4.

[4] Bill Sheath and Rhonda Sheath v Rick Whitley and Sandra Whitley [2014] NSWCATCD 44, para 22.

 

This article is contributed by Jason Carlson, Partner, Grace Lawyers

About the author

This article was prepared by Jason Carlson, Partner of Grace Lawyers.  You can learn more about their unique approach to strata law here.

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