Cigarette smoke-drift from a neighbouring unit deemed a hazard and nuisance by NSW Tribunal
By Cancer Council NSW
Residents of an apartment block in Kingscliff NSW are looking forward to smoke-free living after the NSW Civil and Administrative Tribunal (NCAT) agreed that cigarette smoke entering their home from the unit below was both a hazard and a nuisance.
The Kingscliff residents had been enjoying their beachside apartment for almost 5 years before cigarette smoke from the unit below started regularly drifting into their home. Even with all their windows and doors closed the smoke continued to make its way into the apartment through vents and made using their balcony unpleasant. The residents were particularly concerned about the impact regular exposure to second-hand cigarette smoke was having on their health, saying the smoke-drift was so dense it was impacting their sleep, concentration and often irritated their eyes, nose and throat.
“I know the smoke-drift is a serious health hazard and there is no safe level of exposure to second-hand smoke” – Affected resident
Several attempts were made to resolve the issue directly with the neighbours who smoked, however these attempts were unsuccessful. The neighbours did not believe the smoke was coming from their unit or balcony and were not willing to control the smoke-drift. Even with the buildings strata manager present to support these discussions no resolution could be reached and the cigarette smoke continued to enter the residents apartment.
Eventually mediation was sought via the Communities Justice Centre. As their neighbours were not willing to participate in the mediation the residents were left with limited options to address the issue.
Addressing smoke-drift in Strata
In NSW, model by-laws relating to smoking can be adopted by strata schemes. By-laws are rules that all residents in strata properties must follow and help manage the shared living environment. In strata schemes which do not have a smoke-free by-law in place, protection against smoke-drift can only be upheld under general nuisance laws as part of the Strata Schemes Management Act 2015 and the Residential Tenancies Act 2010.
Unfortunately, the apartment building’s strata scheme did not have a smoke-free by-law to protect residents against smoke-drift from neighbouring units. The affected residents felt they had no choice but to take legal action through NCAT, who have jurisdiction to hear such cases.
Taking the issue to NCAT
The case known as Pittman v Newport 2022 went to the Tribunal in December 2021. The affected residents noted that addressing the issue through the legal system was time consuming and required meticulous record keeping of the smoke-drift and its impact.
“The system is hard to navigate and you need to compile so much evidence and counter arguments” – Affected resident
They described the biggest challenges of the process as not knowing how much information they needed to submit, the length of the case and the amount of time from their daily lives the case would consume. They sought help from a solicitor to navigate these challenges and believed the solicitors legal knowledge was vital for building a successful case.
The evidence they submitted to the Tribunal included:
A Sworn Testimony
Diary entries recording details of the smoke-drift and its impact
Photographs and floor plans to show the proximity of the units and physical impact of the smoke-drift
Correspondence with their neighbours
Medical documents demonstrating the health impacts cause by the exposure to second-hand smoke
After 15 months, the Tribunal accepted the affected residents’ evidence and agreed that the cigarette smoke drifting into their unit was both a hazard and a nuisance under the NSW Strata Schemes Management Act 2015.
The downstairs neighbours were subsequently prohibited from:
Smoking tobacco products on their balcony
Allowing guests or any other person to smoke tobacco products on their balcony
Allowing cigarette smoke to drift into the affected residents apartment
The outcome was a great win for the affected residents who are hoping it will set a precedent for similar cases in the future. They believe their case was successful due to the thorough evidence they submitted, particularly their detailed diary notes.
Following the case, a smoke-free by-law was successfully voted in during an annual general meeting of the owners corporation. Once fully implemented, it will provide an avenue for all residents of the apartment building to address smoke-drift without needing to take legal action.