A Win For Non-Smokers

17 MAR 2023


The rules and regulations of Strata properties rest with the particular body corporate to use strata-scheme by laws to regulate their owners, tenants or occupiers.

One of the most common disputes between Strata and apartment blocks is caused by smoking on balconies. There are often strata-scheme rules prohibiting Owners and Tenants from smoking inside their apartment, however there is a lack of regulation in relation to smoking on balconies.

This issue recently arose in the case of Newport v Pittman [2022] NSWCATAP 150 whereby a non-smoking couple commenced proceedings against their neighbours in the NSW Civil and Administrative Tribunal (“NCAT”). Like many others, the body corporate in Newport did not have any by-laws regulating or prohibiting the smoking of lot Owners, Tenants or Occupiers. The Applicant’s argued that the smoke from their neighbour’s balcony caused them to not be able to use their balcony and was entering into their apartment through their air vents which was disturbing them.

The Applicants relied on the NSW Strata Schemes Management Act 2015 to assert that the smoking on the property was a nuisance to them. They specifically relied on section 153 that states that an Owner or Tenant must not cause a nuisance or a hazard to the occupier of any other lot. This section continues to question whether the nuisance or hazard could ‘unreasonably’ interfere with the use of enjoyment of common property or another lot.

Upon the facts, NCAT ruled pursuant to section 153 that the smoke drift from the balcony amounted to private nuisance and furthermore, amounted to a substantial and unreasonable interference with the applicants use and enjoyment of the lot.

NCAT based this finding off multiple circumstances of the case, including the amount of cigarettes the neighbours consumed per day, the potential harm of smoke drift and national tobacco strategies, the fact that the Applicant’s attempted to limit the smoke drift to their apartment, diary records of the Applicant’s, and the repeated attempts to resolve the issue with the neighbours directly.

The above case demonstrates that there is recourse for non-smokers in strata blocks. With regard to the physiological dangers of smoking, the NSW Government has banned smoking in numerous areas such as among other things, around schools, children's play areas, and public transport stops. The Applicant’s in the Newport case argue that this case signifies that it is time the NSW Government banned smoking in all close-living apartment blocks.

If you are an Owner, Occupier or Landlord and require advice with respect to the contents of this article, please do not hesitate to contact our Property Department here at Marsdens Law Group.


The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice, Specific legal advice should always be sought separately before taking any action based on this publication.


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