On 21 December, 2021 a Queensland Adjudicator made orders restraining an owner of a unit from smoking on her balcony, and regulating her when smoking inside her unit.
While previously most complaints concerning smoking in bodies corporate have been considered in the context of the law of nuisance, in this case it was considered in the context of the by laws of the Scheme, and also whether it constituted a “hazard” for the purposes of sec 167 of the BCCMA (the relevant Act regulating bodies corporate).
Having regard to a number of factors, including the frequency of the conduct, that harm from second hand smoke is widelay accepted, serious, and that there does not appear to be any “safe level”, the Adjudicator found that the smoke drift was a hazard and breached section 167.
The Adjudicator also commented concerning whether – in a situation where the conduct was potentially a breach of by-laws as opposed to only being a breach of section 167 – a body corporate should make enquiries before determining whether to issue a breach notice.
So, if you are a smoker and you want to live in a unit, you should consider the restrictions. And if you are an owner annoyed by smoke drift – now might be a good time to do something about it.
We should mention that it is possible that this decision – or the principles of it – may be changed on appeal or might not be followed by other adjudicators but it is good to be aware of it.
