Smoke drift from balcony, no bylaws

Smoke from BBQ’s and smoking are the same ‘nuisance’ not always policed within bylaws. If you feel brave enough have you considered writing an initial friendly note bring your concern to your neighbors attention? It’s a good first proactive step and perhaps the offending smoker is unaware of their consequence. Additional to that consider a cheap fire alarm on your balcony (seriously!). If it triggers often enough it’s sure to annoy them, and others, to the amount of smoke causing it, and hopefully that might bring some correction by them or others now sharing the pain. All the best with it. Cheers, C.

…our strata manager …advised that even though the external parameter of the balcony is common property, the airspace isn’t; and as such the lot owner is free to smoke out there regardless of how it impacts other residents.

Your strata manager needs to go back to strata school.  Balcony common property is treated slightly differently from other common property such as hallways, in view of the fact that what goes on there generally only affect the people living in the unit. But of course the air space is common property.

So a by-law that said no smoking on common property – which most schemes have – wouldn’t necessarily apply to balconies.

However, you can pass by-laws controlling the use of balconies, from the colour and construction of furniture, to blinds or awnings, whether or not barbecues are allowed and the drying of laundry. In short, anything that can be seen from outside or affects other residents can be controlled by by-laws … including smoking.

As you will see from the extract (above) from section 153 regarding nuisance, smoke penetration from another unit – yes, even inside the unit – or balcony can be regarded as a nuisance and is therefore against strata law (never mind by-laws).

How do you deal with it?

As Flame Tree suggests, try a polite note asking your neighbour to smoke in a part of her balcony so that the fumes don’t drift into yours (which may change as wind direction changes).

If they respond negatively – “I know my rights” etc etc – point out that they are in breach of the Act and get your committee to tell your strata manager (or someone in their office who knows what they’re doing) to send them a letter quoting Section 153 and informing them that affected residents would be able to seek orders at NCAT requiring them to do whatever it takes to remove the source of the nuisance – in this case, smoking.

Ignoring NCAT orders can lead to hefty fines.

At the same time you could propose to your next AGM that your scheme creates a “safe smoking” area for residents which is permitted under the Act provided the smoke from it doesn’t drift into common property or apartments.

Once you have that in place, you could think about creating a no-smoking on balconies by-law (although you could do that without having a designated smoking area).

But just in case anyone thinks Section 153 is a “silver bullet” have a look at this case where a couple who had been  ordered to stop smoking on their balcony won an appeal against the order because insufficient evidence was offered.  Also, there was no by-law in place, despite the government giving strata schemes every encouragement to create no-smoking by-laws.

It’s an interesting read.  It establishes tha smoke drift is a “nuisance” in legal terms and that by-laws would have been valid.  But the way it was presented in the first place, the case was flawed. So maybe a carefully worded by-law may be the best next step.

• This reply was modified 1 year, 11 months ago by .

Smokeye wrote:

Secondly, my strata manager is a useless piece of excrement and we are stuck with him for the next 18 months.

If your strata manager is incompetent, and you can prove it, then you can sack him or at least ask his firm to give you someone else.

The strata manager has quoted us $1,100 to execute and adopt a new bylaw (does that sound about right?).

Our sponsors Bannermans have a DIY by-law service that costs $299 while registration is about $600 (and there may be a process fee if they do it for you).  So you could save a few dollars on your strata manager’s charges but, to be fair, their fees aren’t too far off the scale.  The thing is, do you trust them?

Smokeye wrote:

if, according to the Strata Manager, the balcony “airspace” isn’t common property and in fact part of the lot itself, then Section 153 definitely applies.

True.  But the balcony air space IS common property, only with exclusive use by the resident of the unit.  Your assessment of his professional commitment sounds spot-on.

Jimmy-T wrote:

Smokeye wrote:

if, according to the Strata Manager, the balcony “airspace” isn’t common property and in fact part of the lot itself, then Section 153 definitely applies.

True. But the balcony air space IS common property, only with exclusive use by the resident of the unit. Your assessment of his professional commitment sounds spot-on.

I don’t mean to be difficult but that doesn’t seem right to me.

AFAIK the airspace on an apartment lot balcony is the same as the airspace inside a an apartment lot.

The balcony structure will be common property the same as the floor structure  inside the lot is.  But the airspace belongs to the lot with boundaries defined on the strata plan.

Austman wrote:

AFAIK the airspace on an apartment lot balcony is the same as the airspace inside an apartment lot.

I’m not 100 per cent sure about this, but Vic law and NSW law differ on so many things I wouldn’t take it for granted.  In any case the strata manager’s “air space” argument is spurious since section 153 of the act refers to nuisance from inside units too, and NSW strata law allows owners to regulate what people do on their balconies through by-laws

Smokeye wrote:

Can I breach my strata manager??

Your committee can instruct him to follow a course of action and if it’s legal and he fails to do so you have grounds for sacking him.

Official complaints about strata managers go nowhere.  They are a protected species and regardless of how crap the worst of them are at their job the worst they get from NSW Fair Trading is a talking to over the phone.

There are some really good strata managers in NSW and some shockers, but none of them have ever lost their licence for being terrible at doing their job.

S.153 might well apply.

But who is causing the nuisance and who is being affected by the nuisance?

It’s a lot v lot issue on a possible strata Act breach.

With lot v lot issues on Act breaches, an OC/BC need not get involved. And in some types of lot v lot disputes it probably shouldn’t get involved.  But involvement or not is an OC/BC decision – at least at committee level.

There is an argument that OC/BCs  have a duty to try to at least try to enforce their own by-laws/rules, even in lot v lot disputes.

Even in the landmark QLD case mentioned above, the Adjudicator noted that.