No smoke without ire in vicious balcony battle

When Flatchatter Sorrel (not her real name) tried to do something about smoke drift from her new neighbours’ balcony into her home she found herself in a year-long battle that descended into a campaign of bullying, lies and intimidation and efforts by her smoking neighbours to turn the rest of her block against her.

This reached a nadir when the smokers’ solicitor – not an expert strata lawyer – subpoenaed her unredacted medical records, containing personal and private information that had nothing to do with the case.

Last week, Sorrel was due to front up at a Tribunal to hear her case, when the smokers’ lawyer dropped another bombshell.

This is her story.

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In April of 2021 I purchased an apartment in Rockdale in the inner south of Sydney, and moved in with my two teens, who were 13 and 15 at the time.

We lived there very happily for 18 months until November 2022, when new neighbours moved into the unit next door. They announced that they were smokers, and promptly started smoking on their balcony multiple times a day. The smoke from their cigarettes wafted into my unit and filled my house with the smell. I was only mildly alarmed at first because I was certain that we were covered by the by-laws and it would all work itself out.

Upon reviewing the purchase documentation I was horrified to discover that we didn’t have a smoke drift by-law. It was simply an oversight on my part as I had never encountered such an issue throughout all the years that I had lived in apartments.

I knew at that moment that I was in big trouble. Firstly, I work from home several days per week. Secondly, I have children living here. Lastly, I have asthma – and although very well managed for many years, I was understandably worried about how this would affect my health.

I emailed my neighbours expressing my concerns that their smoke was drifting into my lot. Their response was essentially: “That’s too bad but we can do whatever we like. There’s no by-law and we’re not doing anything wrong. If you don’t like it, close your windows.”

My neighbour also started burning incense on the balcony in an attempt to mask the smell of cigarette smoke. On some level this was worse than the nuisance drift from tobacco smoke: the fumes pervaded every nook and cranny of my house and I had to leave the air purifier running for hours to get rid of the smell.

I subsequently attempted to pass a smoke drift by-law at the AGM in March of this year. It was voted down by my smoking neighbours, as well as another smoking family in the building whose reasoning was, “we don’t want to tell anyone what to do in their own homes” and “we should all just live harmoniously and respect everyone’s lifestyles choices”.

My strata manager was equally unhelpful. His position was, “Listen everyone. Even if you do pass this by-law, you still have to have meetings, you still have to have resolutions, you may have to go to court, there may be costs, and at the end of the day, there is no guarantee that the person will comply.”

He then went on to say: “What happens if tomorrow there’s someone having a BBQ on their balcony? What if tomorrow there’s someone cooking bad smells? Where do you start and stop with this drifting business?”

By this point I had been suffering smoke drift daily, multiple times a day, in my home office, living room, kitchen, and my teenage daughter’s bedroom. The smoke seeped in while we were eating dinner, watching TV, or just relaxing. My kids would come home from school to a house that smelled like an ashtray and I had to keep my balcony doors closed during the day to prevent the constant intrusion.

Even more unsettling was the fact that my neighbour owns and runs an HSC tutoring business, so she was working with children and young people all day; yet showed zero empathy for the two high-schoolers living right next door to her whose second-hand smoke she was forcing them to breathe on a daily basis.

After many sleepless nights and scrolling realestate.com.au at all hours wondering if I should just cut my losses and sell, I found an amazing strata solicitor, and, having discovered the landmark precedent of Pittman v Newport, I decided to commence legal proceedings under s153 of the Strata Schemes Management Act.

Anticipating blanket denial from my neighbours, I opened a Google worksheet and commenced a meticulous diary of each smoke drift event: recording the day, date, time, and location in my house where I experienced cigarette smoke. On the days when I worked in the city my teenage son would text me from home if he smelled smoke wafting in via the balcony doors or kitchen window. We were all constantly on high alert.

Our mediation session went ahead in June of 2023. To be honest, I felt that it inflamed matters. Naturally my neighbours were incredibly put out that I was trying to prevent them from “living their lives” in their own home and insisted that I was the “nuisance” in the building, not them. They denied it was their smoke. “Who determines that it’s our smoke? Where’s the proof? Everyone knows smoke goes up not sideways!” The session lasted less than 15 minutes.

However, with the mediation out of the way I had the green light to submit my application to NCAT. I gave my legal team the go-ahead and held my breath.

My neighbours engaged counsel (notably, a general disputes solicitor and not a strata specialist) and submitted their affidavits in response. Their submissions contained the most bizarre statements. They didn’t deny that they smoked on their balcony. They just denied that it was their smoke drifting into my lot. They said things like, “We regularly have friends over and we all smoke on the balcony, but we always make sure to blow the smoke in the other direction”, and, “When I observe the wind carrying the smoke towards the Applicant’s lot, I immediately stop smoking.”

They also roped in the other smoking couple in the building to submit affidavits in an attempt to discredit me. Their testimonies contained statements like, “We never experience any smoke drift from the Respondents” [they are two whole floors up!] and, “Sorrel never told us she has asthma”.

During this time I was also subject to a series of petty complaints being made against me by the Respondents to the strata office. None of these carried any weight. It was purely retaliatory.

In September the conflict reached a climax. My neighbours decided that my claims about their smoke aggravating my asthma was the “primary issue in the dispute”. They demanded that I hand over the last 18 months of my medical records to “examine the evidence”. They threatened if I did not comply within two weeks, they would issue a summons.

At this point, I had consulted with my GP on numerous occasions to try and bring my asthma under control. I had been happily taking a non-steroidal preventer for many years without issue. It didn’t take long for this to become ineffective. I found myself relying on Ventolin multiple times a day. Any veteran asthmatic will confirm that needing Ventolin during the day while also being on a preventer means you have a problem.

My health reached its lowest point on one afternoon in June, where I had been taking Ventolin hourly since the morning with zero effect. I left work after lunch and took myself off to St George ED for treatment. It was an incredibly upsetting experience.

(I subsequently went back to inhaled corticosteroids and my condition slowly improved, but I had a persistent hacking cough for months.)

I consulted with my legal team about the demand for medical records. We agreed that we had nothing to lose, so I obtained the material from my GP, redacted any details unrelated to my respiratory health, and forwarded them to the other side.

A few weeks later, a bombshell: they issued the summons anyway. This was the most upsetting part for me. Notwithstanding the fact that we had no idea what they were trying to prove by obtaining my medical records, this was another level of distress: They would now have access to deeply personal information I had shared with my GP, and there was nothing I could do about it.

They also threatened a counter-claim for harassment and emotional distress because I had taken some photos of my neighbour smoking on her balcony. The respondent’s solicitor claimed this was a “breach of privacy” that “fell within an improper and non-natural use in excess of her rights on her own land (Victoria Park Racing & Recreation Grounds Co Ltd v Taylor)”.

(I’ll let you look up that case and then let me know how much you laughed reading it!)

Happily, the medical records never showed up. In October my neighbour switched to vaping but reverted to burning incense on the balcony multiple times a day, which choked my house with suffocating smoke and fumes and sent me reaching for the Ventolin (videos below).

I knew my hearing date was fast approaching so all I could do was keep the balcony doors closed and hope and pray that sanity prevailed at Tribunal.

Fast forward to last week, and at 3:36pm on Friday afternoon we received notice from the other side that they had capitulated and agreed to all our terms:

1. no smoking on the balcony
2. no allowing friends or visitors to smoke on the balcony
3. no burning incense on the balcony

There will be no hearing on Monday.

My solicitor will front up instead, and have the consent orders drawn up. This makes them legally enforceable: if my neighbours decide to go back to their old habits I can “renew” the orders at NCAT and they will be fined.

The financial penalty is not insignificant – $5,500 for the first infraction and I think $11,000 thereafter. 

(I would very much have liked to have the orders recorded in caselaw, but this would have meant a risky and stressful trial where the outcome was not guaranteed. Having said that, the fact that the Respondents crumbled at the 11th hour likely meant that they knew they had no chance of success. This is a testament to the strength and weight of Pittman v Newport.)

In addition, I will be attempting yet again to propose a smoke drift by-law at our AGM in March next year. Once the consent orders are finalised, I will be sending a strongly worded email to my committee with a message that I expect their full and unwavering support for said by-law, to prevent this situation from occurring to anyone else in the future.

The most disheartening aspect of this whole debacle is that it was entirely preventable. In short, it’s been 12 months of hell. Beyond the emotional strain, my legal fees are well into five figures. I knew it was going to be expensive, and I felt very fortunate to have the means to be able to afford it. But what about all the families who can’t afford it? They have to either put up with it, or move. This is completely unacceptable. So I will be sharing my story at every opportunity with the hope of influencing future changes to the Act.

I had the most incredible all-female legal team who were passionate advocates for me and my case, and were able to dismantle the respondents’ petty schoolyard bullying with razor-sharp intellect and scathing critique. They are legit queens and I am in awe of all of them.

So, even though I don’t have to go to court on Monday, I will enjoy the day off nonetheless. I am physically and mentally exhausted but happy.