As reported in Accom News on January 25, in what could have major repercussions for bodies corporate, a move by Body Corporate and Community Management (BCCM) 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.
Accom News spoke to Australian Resident Accommodation Managers Association (ARAMA) CEO, Trevor Rawnsley on the issue to ask for his views on what has in recent weeks has ignited a great deal of comment.
Mr Rawnsley, a non-smoker, said it was only natural that there an impact when people who live together don’t necessarily share the same views and opinions, so there is no shortage of disputes in strata.
Smoking, he said, is just another reason to argue, and this decision (to ban the smoker from lighting up on their balcony) originally handed down by an adjudicator will do nothing to stop the arguments.
“In fact, and please excuse the pun, it might fire up those anti-smokers to be more assertive in their rights to live in a smoke-free environment,” he said.
“I actually feel sorry for smokers. I find most of them to be quite reasonable but when you live in strata, you live on top of each other and things like noise, parties, parking, and pets are all things that people argue about and smoking is no different.
“This adjudication strengthens the argument of the anti-smoking campaigners and gives more work for lawyers when they are updating by-laws, but ultimately the arguments will still continue.
“Reasonable smokers will be reasonable and confine themselves inside their lot, unreasonable people will puff away outside on the balcony or blow smoke in people’s faces.”
Mr Rawnsley said if smoking was used like the pointy end of what a body corporate can and can’t do, or should or shouldn’t do, it would be empowering the body corporate to make by-laws about a whole variety of things that might offend or disturb other people.
“One of them might be today we are going to put in a by-law to stop people smoking on their balcony, tomorrow we’re going to stop people singing in the shower or stop people whistling on a Tuesday.
“It might sound silly but there are people out there who have very unreasonable views about how by-laws should be worded and applied.
A solution, Mr Rawnsley said, could be to treat smoking as a public health issue by the government, banning it.
“You ban smoking, you can’t smoke,” he said.
“Or the government should be encouraged to do what they do in commercial buildings where they have a designated smoking area.
“That may not be the unit owner’s lot, but at least everyone knows that the government has mandated that smoking should occur in these places under these circumstances, and then it’s not up to a body corporate or a really aggressive anti-smoker who’s the chair to pass by-laws and rack up thousands of dollars in legal fees because they don’t like people who smoke.
“They talk about smoking being a hazard and it’s a very subjective measure.
“But it shouldn’t be up to an anti-smoker campaigner or a lawyer to promote anti-smoking by-laws that are unlawful, unenforceable and that provide fodder for further arguments in the courts.
“In short, the adjudication will do nothing to stop the argument.”
Mike Parker-Brown is a UK-trained and qualified journalist and an award-winning travel communicator with more than 30 years experience.
Since 2002, Mike has worked as a freelance writer and PR consultant providing his services to major organisations in Australia and internationally in the tourism, aviation, hospitality, recruitment and export marketing sectors.
Why didn’t the Anti Cancer/Smoking Council push their anti smoking argument during the commencement and height of the COVID Crisis? It stands to reason that as COVID affects the respiratory organs, smokers are more likely to be “bowled over” by this virus. Hence giving up was the logical move!! Absolute stupidity on their part.
Thanks so much for your comments relating to the ‘No smoke without fire’ story appearing in the February 7, 2022, edition of Accom News.
The story has certainly fired up a good deal of debate from both sides of the pro-smoking and anti-smoking lobby and we will certainly be running further editorials on this subject as the story continues to evolve. Watch this space!
Thanks again for taking the time to make contact. We welcome and encourage our readers to pass on their thoughts on the various issues affecting the accommodation sector.
Flippant comments about stopping singing in the shower or whistling on a Tuesday are deflections (and silly ones, at that) from the principal reason for the Adjudicator’s decision. Second hand cigarette smoke is a medically proven hazard to health! Singing in the shower is not — although upon reflection, listening to my singing in the shower might trigger mental health problems for some!
I was a smoker for some 12 years but gave it up 40 years ago. Back in the Sixties and Seventies, particularly in the international travel and airline industries that I was part of, smoking was smooth, chic and socially admirable. Today, we are better educated, and smoking around other people is frowned upon.
I think that it is important that the accommodation industry keeps discussion of the topic on point. It has nothing to do with singing or whistling. It is about a health issue that is only going to get further attention from regulators, so the real estate and accommodation industries had best get used to it and plan accordingly.
Hi Mike – thanks so much for your contact and comment. We’re watching this story closely and we’re confident we haven’t heard the last of this.
As soon as we hear further, we will let you/our readers know what is going on.
Thanks again for taking the time to comment.
Kind regards – Mike Parker-Brown