Case Note ~ Tribunal says no to smoking
Gisks v The Owners – Strata Plan No 6743; The Owners – Strata Plan No 6743 v Gisks [2019] NSWCATD 44 and Pittman v Newport [2022] NSWCATD 173
Two cases before the New South Wales Civil and Administrative Tribunal (Consumer and Commercial Division) have held that smoke drift can cause interference that amounts to ‘nuisance’ in neighbouring lots. In both Gisks v The Owners (Gisks) and Pittman v Newport, applicants successfully submitted that the smoke drift produced by their neighbours violated s153 of the Strata Schemes Management Act 2015 (SSMA).
S153 of the SSMA determines that owners, tenants or occupiers cannot:
- use the lot in a manner that causes a nuisance or hazard to an occupier of another lot;
- use the lot in a manner that interferes unreasonably with the common property; or
- use the common property in a manner that interferes unreasonably with any other lot.
Gisks v The Owners – Strata Plan No 6743; The Owners – Strata Plan No 6743 v Gisks [2019] NSWCATD 44
The Tribunal was satisfied in Gisks that the smoke drift from the respondent interfered with the applicant’s use and enjoyment of both their lot and the common property to a substantial and unreasonable extent. Referencing Bill Sheath and Rhonda Sheath v Rick Whitley and Sandra Whitley [2014] NSWCATCD 44, the Tribunal affirmed that smoking was a hazard and strongly weighted the applicant’s complaints of health concerns.
Mr Gisk could not establish that a by-law existed in the strata scheme that addressed smoke penetration from one lot to another and as a result the Tribunal could not make any order in relation to enforcing the by-laws. Even so, under s241 of the SSMA the Tribunal ordered that the respondent could not smoke on her balcony and must close all exterior doors and windows when smoking indoors to prevent any smoke drift.
Pittman v Newport [2022] NSWCATCD 173
The smoke drift events relevant in Pittman v Newport left both applicants with health issues, with Mr Pittman losing his part-time job as the smoke from his neighbours affected him to the point where he was unfit to work. After attempting to resolve the issue by emailing the respondents and engaging in mediation processes that broke down, the applicants then turned to the Tribunal.
The respondents claimed that the smoke drift could have been due to sugar cane burn-offs that occurred frequently in the Kingscliff area. They further argued that any smoke drift would be dissipated by the wind or could have originated in one of the neighbouring apartments, as no other residents of the building had previously complained of a smoke smell. These claims were rejected by the Tribunal on the logical grounds that the burn-off smoke smelt vastly different to the smell of cigarettes, the southerly winds most common in the area would be blocked for the relevant North facing lots and neighbouring apartments were too far away.
The Tribunal noted that it had to balance the right of the respondents to use and enjoy their private lot with the right of the applicants to live without an unreasonable interference. It was ultimately ruled that the smoke drift produced by the respondents did violate s153 and the Tribunal decided the respondent lot owners could no longer smoke on their balcony and must prevent any smoke or odour drifting into the applicant’s lot directly above their own.