Smoke drift battle exposes NCAT’s farcical flaws

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  • 03/01/2023 at 5:28 pm #66936
    Jimmy-T
    Keymaster

      The recent Sydney Morning Herald story about a couple who – at the third attempt – won a case to get their neighbours to stop smoking on their balcony
      [See the full post at: Smoke drift battle exposes NCAT’s farcical flaws]

      The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
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    • 04/01/2023 at 1:49 pm #66957
      dyden2099
      Flatchatter

        I no longer smoke but the high moral ground is easy to invoke in the case of smoke drift. While overwhelming evidence of adverse effects of passive smoking exist these studies were conducted in cases of confined spaces ie indoors.

        I have no doubt some people find the smell of cigarettes offensive but it is less clear that it is a significant health hazard. How would you eliminate the effect of other toxins in the air. Diesel and petrol exhaust emissions in particular are far more toxic. Even BBQ smoke is in theory carcinogenic.

        In my block we have a by-law banning smoking and we still get oke drift from the street. Honestly there are more important issues and bigger safety issues. In the future when combustion engines are no longer a feature we will complain about the smell of vintage cars.

         

        04/01/2023 at 2:04 pm #66965
        Jimmy-T
        Keymaster
        Chat-starter

          Having just watched barbecue smoke pour off a balcony two floors below mine, I’m afraid I’m not in agreement with the “why ban this when something else is just as bad?” argument.

          I had a boss who complained about smoking being banned in the office on the grounds that the air on the street was more polluted. The argument that at least we could get some relief from toxic fumes at work cut no ice.

          Permanent change tends to be gradual.  I like going into pubs that no longer stink of cigarettes (and, yes, I used to be a smoker too).  More than 60 percent of Australians have never smoked, rising to 80 per cent of 18-24-year-olds.

          I find the stink off a smoker’s clothes when they get in the lift pretty offensive and I’m guessing that’s down to being sensitised to the smell.

          We put up with a lot of stuff in our lives – including the fumes from motor vehicles – but that doesn’t mean we should never complain about it when it offends.  Environmental pollution is probably a significant factor in the increasing incidence of allergies among kids.  So reduce what you can and let the rest die out naturally, would be my view.

          Oh, and regarding your comment that barbecue smoke could be carcinogenic – standing in smoke that combines burnt meat (very cancery) and fossil fuel is the equivalent of smoking 100 cigarettes, according to French environmental group Robin des Bois. And, hey, they’d mean French ciggies, too.

          The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
          04/01/2023 at 2:18 pm #66969
          Jimmy-T
          Keymaster
          Chat-starter

            And while I have your attention – the point of my story wasn’t whether or not smoke drift was harmful, it was that strata law says it is (it’s a nuisance) and the Tribunal did not doubt that the plaintiffs were subject to it.

            However, the NCAT Appeals Panel – clearly in a fever dream that they were the US Supreme Court – decided to question whether or not it was really a problem, apparently on the grounds that the victims hadn’t provided evidence of the harmful effects of cigarette smoke (which was not required in any case).

            This is the kind of thing that (rightly) undermines our faith in the whole mediation and tribunal system which lurches from the ineffectual to the farcical, with strata residents stuck in the middle just seeking a simple answer. The fact that the plaintiffs eventually won doesn’t mitigate against the huge waste of time, money and emotional energy that this exposed.

             

            The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
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