By
Cancer Council NSW
Clearing the Air: Implementing a Smoke Free Model By-Law in an Apartment Complex
By
Cancer Council NSW
Summary
A couple’s ongoing struggle with neighbourly smoke drift in their apartment complex prompted a pursuit to resolve the issue through the introduction of a model smoke-free by-law. Past attempts at Annual General Meetings (AGMs) were pushed back, but a favourable NSW Civil and Administrative Tribunal (NCAT) ruling acknowledging smoke drift as a hazard and nuisance revitalised their cause. With eventual support from the Strata Manager and Owners Corporation, they navigated a multi-stage process, resulting in a smoke free model by-law adoption via a special resolution. The new by-law empowers all residents to address smoke drift without the need to take legal action. Despite challenges and opposition, persistence, proactive management, and the NCAT ruling were instrumental in achieving cleaner, healthier living conditions for the affected couple and across the complex.
A couple from Kingscliff in northern NSW were experiencing smoke drift from a neighbour, impacting their health and wellbeing for several years. The Kingscliff unit block, built in 2016, did not have a smoke free by-law and had not adopted either of the model smoking by-laws introduced by the NSW Government in 2017.
After numerous attempts to stop the cigarette smoke drift, the affected residents sought the help of a solicitor seeking orders to address the issue of smoke drift from one specific apartment, with residents smoking on their balcony. This was successfully pursued through the NSW Civil and Administrative Tribunal (NCAT), ruling in favour of the affected residents, and determining the cigarette smoke from the neighbour was both a hazard and nuisance under the NSW Strata Scheme Management Act 2015. This process is outlined in detail in the case study ‘Cigarette smoke-drift from a neighbouring unit deemed a hazard and nuisance by NSW Tribunal’.
This was a significant win for the affected residents, though pursuing specific orders created a difficult and, at times, hostile environment among some other residents.
Despite this, to prevent further issues of smoke drift in the complex, the affected residents pursued the adoption of a by-law into their strata scheme.
Despite unsuccessful attempts to introduce a smoking by-law at previous Annual General Meetings (AGM), the favourable NCAT decision was an opportunity to get the issue on the agenda of the Owners Corporation again. Implementing the smoke free by-law required the support of the Strata Manager and the Owners Corporation across several stages. This process included:
- The Strata Manager for the apartment complex was made aware of the NCAT ruling and encouraged the Owners Corporation to vote in favour of adopting a smoke free by-law at the next annual general meeting (AGM). This AGM occurred one week after the NCAT ruling.
- At the AGM, the Owners Corporation was asked to vote for the adoption of the smoke free by-law using the wording of one the model by-laws in the Regulations. The introduction of a smoke-free by-law was adopted by special resolution, securing greater than the required 75% of votes.
- A second general meeting was held soon after, with agreement secured to have the bylaw wording reviewed by a Strata By-Law Specialist. A Strata By-Law Specialist was engaged in this instance by preference of the Strata Committee and Strata Manager to ensure it was accepted.
- Lastly, the Strata Committee met to confirm the wording of the by-law as requested by the Strata By-Law Specialist, and with approval the by-law was eventually lodged with The Office of the Registrar-General within the required timeframe of six months. This process from the initial request for a by-law by the affected residents to the implementation and registration of the model by-law was three years, which is longer than usual and reflects the challenging circumstances of this case compared to others.
The new model by-law introduced states:
(1) An Owner or occupier and any invitee of the Owner or occupier, must not smoke tobacco or any other substance on the common property and
(2) An Owner or occupier of a lot must ensure that smoke caused by the smoking of tobacco or any other substance by the Owner of occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot.
This provides an avenue for all residents to address smoke-drift without the need to take legal action, if polite and respectful requests for elimination of cigarette smoke drift are ignored.
A 100% smoke free by-law was not pursued in this case, as there was no confined area on the common property where cigarette smoke drift could be contained. The intent was to improve the health and wellbeing of the affected residents by reducing their experience of smoke drift, so they proposed using a model by-law that reflected the outcome of the NCAT ruling but did not extend beyond that.
- Overcoming a lack of support from other apartment owners who had declined to support the motion for a smoke free by-law at previous Owners Corporation meetings.
- The process was longer and more complex than it needed to be and required persistence to overcome opposition from other residents.
- The resident pursuing the smoke-free by-law displaying persistence and resilience throughout the process.
- Having a well informed and proactive Strata Manager who knew how to achieve the desired outcome and could educate other owners about the importance of having the by-law. This education supported the unanimous vote to finally pass the by-law after several unsuccessful attempts at previous meetings.
- The NCAT ruling was critical in this case to secure the vote of apartment owners during the AGM and implement a by-law
- For information relating to Smoke Free Apartments and implementing your own smoke free by-law see our webpage Smoke Free Apartments and our Toolkit. Contact us at tacklingtobacco@nswcc.org.au for further information.
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