No butts – BCCM ruling stubs out balcony smoker

Benchmark decision lights ‘nuisance v hazard’ position

In what could have major repercussions for body corporates, a move by Body Corporate and Community Management (BCCM) has resulted in a Surfers Paradise unit owner barred from smoking on their balcony.

Under an Office of the Commissioner for BCCM Adjudicator’s order, the owner must not smoke tobacco products on the balcony of their property.

Further, the owner may only smoke tobacco products elsewhere within the property if they take reasonable steps to ensure that tobacco smoke emanating from the property does not affect any person lawfully using another property, for example, by closing the unit’s windows and doors.

The benchmark decision follows a complaint from a unit owner who lives directly above and claimed smoke from the unit below entering her unit was “relentless and unbearable”, according to the ruling.

The ban, the determination for which centred on the smoker being seen as in breach of by-laws and sections of the Body Corporate and Community Management Act 1997 (Qld), has been based on second-hand smoke being referenced as a ‘hazard’.

And, that the complainant had provided “sufficient evidence” as to the “volume and frequency” of the smoke drift.

Commenting on the outcome, Hynes Legal’s Frank Higginson said “one of the lines we’ve been bouncing around using for the last couple of years is that there’s no such thing as a pet-free building in Queensland.”.

“You could argue, in one sense, based on this decision, there is no such thing as a smoke-friendly building in Queensland,” he said.

“Where it all starts is really section 167 of the act that says people can’t use their lot or common property in a way that causes a nuisance or a hazard.

“Every smoking dispute before now has been predicated on smoking being a nuisance.

But where the adjudicator has gone in this particular matter is to the second part of that Section 167 and referenced ‘hazard’.

“It’s a really interesting one in terms of that interference in a sense with people’s property rights.

“In theory once you go inside that front door, normally it’s your domain to do with as you see fit provided you don’t interfere unreasonably with other people’s use and enjoyment of their lot.

“But now we’ve got that little rider ‘or act in such a way that causes a hazard’.

“So, hazard is probably going to be the word of the year from a strata perspective.”

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