Strata nuisance and hazard claim

PETER has been residing in a strata unit for six years.

Barry moves into a unit five meters directly below him.

Peter soon notices that Barry smokes cigarettes on his balcony and that the smoke drifts up to Peter’s unit.

The by-laws of the strata plan do not prohibit smoking cigarettes.

Peter proposes a special resolution to adopt a by-law prohibiting smoke drift/penetration but his motion is defeated.

Peter writes to Barry, stating that the cigarette smoke is preventing him from using his balcony and that it is causing health problems, including migraines, coughing and sleeplessness.

He states that he has to keep his windows and doors closed for 95 percent of the day due to the smoke drift.

Peter invites Barry to participate in mediation but Barry declines.

Peter commences action, seeking an order that Barry cease permitting cigarette smoke to drift into Peter’s unit on the basis that it causes a “nuisance or hazard” under strata legislation.

Peter files an affidavit, containing diary entries regarding the smoke drifts and a spreadsheet matrix recording more than 400 smoke drifts over two months, plotted hourly over 24-hour periods.

The matrix also records wind direction.

Peter’s affidavit also includes medical certificates, detailing his health conditions.

He references material from the Cancer Council, the World Health Organisation and an Oxford Academic publication stating that tobacco smoke can be detected up to nine meters away.

Barry’s affidavit provides evidence that he was not present in the unit on some of the occasions when smoke was identified.

He describes Peter’s behaviour as being aggressive, unreasonable and controlling. Barry also files affidavits from several other residents, stating that they do not experience the smoke drifts that Peter describes.

The tribunal states that smoking is not illegal and that there is a general rule preventing smoking within four meters of a neighbouring unit.

However, the Tribunal accepts that Barry is a frequent daily smoker and that cigarette smoke is capable of rising up to Peter’s balcony.

The Tribunal states that secondhand tobacco smoke is a serious health risk and ultimately orders Barry to cease smoking on his balcony.

Email Manny Wood, Principal Solicitor at TB Law at manny@tblaw.net.au or call him on (02) 66 487 487.

This column cannot be relied upon as legal advice.

By Manny WOOD, Solicitor