Introduction

Smoking within NSW strata schemes is a frequent source of discussion and conflict, particularly as laws across Australia increasingly restrict smoking in areas where it might affect others. While some residents feel they should be able to smoke in their own homes, the reality of apartment living means that second-hand smoke and smoke drift can easily impact neighbours, leading to disputes.

Understanding the regulations surrounding smoking in strata is therefore essential for maintaining harmony and ensuring residents can enjoy their properties. This guide outlines the key rules, including the role of strata by-laws and nuisance provisions under the Strata Schemes Management Act 2015 (NSW), to help residents, owners corporations, and strata managers navigate issues related to smoking in NSW strata settings.

Understanding Strata By-Laws & Smoking Rules in NSW

The Importance of By-Laws for Regulating Smoking

While nuisance laws under the Strata Schemes Management Act 2015 (NSW) can address smoking issues, having a specific smoking by-law significantly simplifies enforcement for the owners corporation. Relying solely on nuisance laws presents challenges.

Without a specific by-law prohibiting or restricting smoking:

• The owners corporation might lack the legal standing to apply to the NSW Civil and Administrative Tribunal (NCAT) for orders against a resident causing a nuisance, as the corporation itself hasn’t directly suffered the nuisance. This principle was highlighted in The Owners – Strata Plan No. 2245 v Veney [2020] NSWSC 134, although that case related to parking.
• Proving nuisance requires demonstrating that smoke unreasonably and substantially interferes with another resident’s use and enjoyment of their lot or common property, which can be difficult.

Conversely, a dedicated smoking by-law allows the owners corporation to take action simply by proving a resident has breached that specific rule. Demonstrating a breach of by-law is considerably easier than proving nuisance under section 153 of the Strata Schemes Management Act 2015 (NSW).

Common Smoking By-Law Options for Your Strata Scheme

The Strata Schemes Management Regulation 2016 (NSW) provides model by-laws (specifically, Schedule 3, Section 9) that strata schemes in NSW can adopt to regulate smoking. These offer a framework for managing smoke penetration and aim to reduce conflicts. Owners corporations typically choose between two main options or adapt them:

• Option A: This option imposes stricter controls.
  • It prohibits smoking tobacco or any other substance on common property entirely.
  • It requires an owner or occupier to ensure that smoke from their lot does not penetrate to the common property or any other lot. This means smoking inside a lot is only permissible if no smoke escapes.
• Option B: This option allows for some smoking under controlled conditions.
  • It prohibits smoking on common property except in designated smoking areas approved by the owners corporation or with specific written permission.
  • Anyone smoking in a permitted common property area must ensure smoke does not penetrate another lot.
  • Similar to Option A, it requires owners or occupiers to ensure smoke from within their lot does not penetrate common property or other lots.

Many strata schemes adopt one of these model by-laws, often during a general meeting requiring a special resolution (75% majority vote), to clearly define the rules around smoking for all occupants.

Defining Common Property & Smoke Drift Penetration

Understanding what constitutes “common property” is crucial when interpreting smoking by-laws, especially those prohibiting smoke drift onto it. Common property extends beyond obvious areas like lobbies, lifts, and stairwells.

In the context of strata schemes, common property includes essentially everything within the strata plan that is not part of an individual lot. This encompasses:

• The airspace between apartments (walls, floors, ceilings).
• The airspace surrounding the building, including the space between balconies.
• Windows and doors that form a boundary between a lot and common property.

Therefore, if a by-law prohibits smoke penetrating common property, smoke travelling from inside an apartment or off a balcony through the airspace and into a neighbour’s window or onto their balcony can constitute a breach. Even if the smoker is within their own lot, the smoke drift passing through common airspace to reach another lot or common area is often considered penetration, making compliance with such by-laws challenging for smokers.

The Role of Nuisance Laws in Addressing Strata Smoking

Section 153 & Unreasonable Interference

Even without a specific smoking by-law, general nuisance provisions under the Strata Schemes Management Act 2015 (NSW) can address smoke drift within a strata scheme. In particular, Section 153 prohibits an owner or occupier from using their lot in a manner that causes a nuisance or hazard to another occupier. Consequently, residents must not unreasonably interfere with their neighbour’s use and enjoyment of property.

Allowing smoke from tobacco or other substances to drift from one lot into another—or onto common property—may be classified as a nuisance or hazard under Section 153. Whether smoke drift constitutes unreasonable interference depends on factors such as:

• Frequency of smoke penetration
• Duration of exposure
• Impact on the affected residents

NCAT assesses these complaints on a case-by-case basis. Moreover, it recognises that the close nature of strata living requires a degree of mutual consideration between neighbours.

NSW Civil and Administrative Tribunal Decisions on Smoking as Nuisance

Several decisions by NCAT confirm that smoking can be legally recognised as a nuisance under Section 153. As a result, residents affected by second-hand smoke drift may have recourse even if their strata scheme lacks a specific anti-smoking by-law.

Key examples include:

• Gisks v The Owners – Strata Plan No. 6743 [2019] NSWCATCD 44: NCAT restricted a resident from smoking on her balcony and in certain rooms, and required windows and doors to be closed when smoking indoors.
• Pittman v Newport [2022] NSWCATCD 173: The Tribunal prohibited owners from smoking on their balcony or allowing indoor smoke to drift into a neighbour’s apartment, finding it unreasonably interfered with their use of the balcony.
• Shaw v Euen [2023] NSWCATCD 68: NCAT ordered an occupant to refrain from smoking in the courtyard of a lot.

In each instance, the Tribunal held that smoke drift breached Section 153 because it unreasonably interfered with affected residents’ use and enjoyment of their lots. These rulings underscore that occupants in strata schemes must consider how their activities—including smoking—impact their neighbours.

Consequences for Breaching Smoking By-Laws in Your Strata Property

Enforcement Steps for Owners Corporations

When residents breach smoking by-laws in a NSW strata scheme, the owners corporation typically follows a structured enforcement process. This process aims to resolve the issue effectively while adhering to strata regulations.

The enforcement process generally includes these steps:

• Initial communication: Direct conversation with the resident responsible for the breach. Many individuals may not realise their smoking is causing a nuisance or violating a specific by-law.
• Formal notice: If the informal approach fails, the owners corporation or strata committee can issue a Notice to Comply to the resident. This notice officially informs the occupant of the by-law breach and requires them to cease the offending behaviour.
• Mediation: Should the resident continue to disregard the by-law after receiving the notice, the owners corporation can apply to NSW Fair Trading for mediation to resolve the dispute.
• Tribunal application: If mediation is unsuccessful or deemed inappropriate, the matter can be escalated by lodging an application with NCAT for formal orders and potential penalties.

Potential Penalties & Fines Imposed by the NSW Civil and Administrative Tribunal

NCAT possesses the authority to impose monetary penalties on residents found breaching strata by-laws, including those related to smoking. These fines serve as a deterrent and underscore the seriousness of complying with strata scheme rules.

For by-law breaches, NCAT can impose the following penalties:

• Up to 10 penalty units (currently $1,100) for an initial breach of a smoking by-law
• Double the fine to $2,200 if an occupant breaches the same by-law again within 12 months of the first penalty

Furthermore, significantly higher penalties can apply if a resident fails to comply with an order previously made by NCAT. Continued defiance of Tribunal orders can lead to much larger fines, potentially reaching up to $5,500 or even $11,000 in some circumstances related to persistent non-compliance.

Addressing Smoke Nuisance from a Neighbour in NSW Strata

Communicating with Your Neighbour

Ideally, the first step is to speak directly with the neighbour whose smoke is drifting into your apartment. In many cases, they may not realise their smoking is causing a nuisance or affecting others nearby.

Approach the conversation calmly and reasonably—this often leads to a positive outcome without needing further action. A polite discussion can:

• Make your neighbour aware of the issue
• Open the door to practical solutions (for example, asking them to smoke in a different location)
• Preserve good relations within the strata community

Documenting Incidents & Involving the Owners Corporation

If direct communication does not resolve the problem, or you feel uncomfortable approaching your neighbour, the next step is to collect evidence and involve the owners corporation.

Begin by keeping detailed records of each smoke-drift incident, including:

• Dates and times the smoke occurred
• Duration of each episode
• Exact locations where you detected smoke (within your lot or on common property)
• The impact on your enjoyment of the premises (for example, irritation or inability to use your balcony)
• Any measures you took to reduce the intrusion (such as closing windows)

Once you have amassed sufficient documentation, present your concerns to the owners corporation or strata manager. By sharing your evidence and requesting formal action—such as issuing a Notice to Comply against the responsible resident—you strengthen your case and help ensure that by-laws or nuisance provisions are properly enforced.

Escalating the Matter to the NSW Civil and Administrative Tribunal

Should the smoke nuisance persist despite both direct communication and owners corporation intervention, you have the right to escalate the dispute to NCAT.

Tenants, owners and even the owners corporation itself can apply to NCAT for orders to:

• Resolve ongoing smoke-drift disputes
• Enforce specific by-laws
• Address unreasonable handling of complaints by the owners corporation

Furthermore, if NCAT finds that the smoke drift constitutes a nuisance under section 153 of the Strata Schemes Management Act 2015 (NSW) or breaches a smoking by-law, it may issue orders restricting the offending behaviour. This step ensures all parties comply with their obligations and helps protect your enjoyment of your property.

Implementing or Changing Smoking By-Laws in Your Strata Scheme

Proposing a New Smoking By-Law

If your strata scheme currently lacks specific rules regarding smoking, or if the existing by-laws are outdated, lot owners can propose a new smoking by-law. This proposal should be presented to the owners corporation for consideration.

When drafting a proposal, you have several options:

• Use the model by-laws provided in the Strata Schemes Management Regulation 2016 (NSW) as a foundation
• Seek advice from strata lawyers to ensure the proposed by-law effectively addresses your scheme’s needs and complies with NSW strata laws

The Special Resolution Requirement

Introducing a new smoking by-law or amending an existing one requires formal approval from the owners corporation. This process must follow proper procedures:

• The by-law must be voted on at a general meeting, not handled informally
• Passing such a by-law requires a special resolution
• At least 75% of owners present and eligible to vote at the general meeting must vote in favour for the motion to be adopted

Conclusion

Navigating smoking regulations within NSW strata schemes requires understanding both specific by-laws and the general nuisance provisions under the Strata Schemes Management Act 2015 (NSW). Addressing smoke drift effectively involves clear communication, potential owners corporation enforcement, recourse through NCAT, and knowing how to implement or amend smoking by-laws via special resolution.

For expert guidance on interpreting by-laws, addressing smoke nuisance, or implementing new smoking regulations in your NSW strata scheme, seeking professional advice is recommended. Contact PBL Law Group today to leverage the trusted expertise of our strata lawyers in NSW and achieve clarity and compliance within your property.

Frequently Asked Questions