Position statement - Addressing smoke infiltration in multi-unit housing

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Position statement - Addressing smoke infiltration in multi-unit housing


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Key messages and recommendations

  • Exposure to second-hand smoke in the home is a cause of cancer.[1][2] There is no safe level of exposure to second-hand tobacco smoke.[3][4]
  • Smoke infiltration should be addressed like other common issues involving cooperation within shared living arrangements. People living in multi-unit settings share space and infrastructure and as a consequence, rules apply that seek to balance the interests of everybody. Rules commonly apply to matters like pet ownership, parking and noise control – but there are no model or default “by-laws”i about smoking. Because smoke infiltration is both a health hazard and unpleasant, it should be addressed in a specific by-law in a similar way to other common causes of disputes, such as pet ownership and noise.
  • Current regulatory frameworks are inadequate for addressing the problem. There are various laws that people may be able to use for seeking to address smoke infiltration (like residential tenancies or general nuisance laws); however, these avenues can be complex, are only available in certain circumstances and appear to be largely unused for dealing with smoke infiltration. A small number of smoke infiltration cases have been determined under “nuisance” and “hazard” strata laws, but most of the decisions have failed to reflect and keep pace with the science on second-hand smoke exposure. Owners corporations can seek to make their own by-laws on smoking but the extent to which they can do so remains unclear. It could be that the absence of a model by-law on smoking and smoke infiltration in any jurisdiction makes it difficult for owners corporations to address smoke infiltration in a way that they can feel confident falls within their by-law making powers and there may also be uncertainty around the ability to enforce by-laws.
  • The community is ready for governments to move on smoke infiltration. Increasing trends towards smoke-free homes[5] suggests that the community is ready for governments to consult and act on smoke infiltration in multi-unit housing. While more people are choosing not to smoke in their home, the nature of second-hand smoke means that it only takes one smoker to impact the quality of life of multiple non-smokers. There are already examples of owners corporations using strata by-laws to regulate smoking and to go entirely smoke-free.
  • Smoke infiltration has already been flagged nationally as a public health priority so it is now time for action. In 2009 the National Preventative Health Taskforce recommended that state and territory governments take action to “protect residents from exposure to smoke drift in multi-unit developments”,[6] and this recommendation was adopted in the Government’s response.[7] The National Tobacco Strategy (2012-2018) includes an action item on monitoring the issue of smoking and smoke-drift at residential premises and the consideration of policy approaches to support smoke-free homes, particularly where children are present.[8]
  • Some states and territories are actively considering options for addressing smoke infiltration and others should follow suit. New South Wales[9][10] and Queensland[11] are currently considering options for addressing smoke-drift within strata regulatory frameworks. The ACT recognises smoke-drift in multi-unit developments in its plan for future directions for tobacco reduction in the ACT (2013-2016).[12]
  • Momentum in addressing smoke infiltration overseas demonstrates potential for greater progress in Australia. Internationally, the United States (US) is leading the way in exploring issues of second-hand smoke in multi-unit housing and strategies for reducing it and there is a growing body of US based research specifically looking at issues around second-hand smoke in multi-unit housing.[13]
  • Recommendations for reform to strata laws to specifically address smoking. We contend that state and territory governments should:
  • Clarify that the prohibitions on nuisance, hazard and unreasonable interferences in their respective Acts or model by-laws apply to second-hand smoke. Those jurisdictions that do not currently have strata provisions dealing with hazards should introduce them;
  • Develop a model by-law addressing smoke infiltration;
  • Specify in legislation that owners corporations have the power to make by-laws that restrict or ban smoking on common and private property, and clarify the scope of such powers; and
  • Prohibit smoking in specific common areas and building entrances.

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Background

Cancer Council and Heart Foundation offices across Australia are often contacted by people who are distressed that they and their families are being exposed to second-hand smoke within their homes that emanates from neighbouring apartments. Apartment managers and landlords also tell us of their frustration with the difficulties of dealing with smoke-drift.

There are many multi-unit settings where smoke-infiltration is an issue, including in apartment blocks, social and public housing, mental health settings and retirement settings. Options for addressing smoke-drift in every setting should be explored. However, due to current momentum around strata law reforms, this position statement recommends actions for addressing smoke infiltration in strata schemes. A relatively simple start, discussed in this position statement, is the introduction of model by-laws on smoking for multi-unit settings with owners corporations and legislative recognition that smoke infiltration can be considered a nuisance and a hazard.ii

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The problem of second-hand smoke exposure in multi-unit housing

It is well known that second-hand smoke is a health hazard and that there is no safe level of exposure. Children exposed to second-hand smoke are at an increased risk for sudden infant death syndrome, acute respiratory infections, ear problems, and more severe asthma. Smoking by parents causes respiratory symptoms and slows lung growth in their children. Exposure of adults to second-hand smoke has immediate adverse effects on the cardiovascular system and causes coronary heart disease and lung cancer.[4][14][1][15] There also are a range of other health conditions that have been associated with second-hand smoke exposure.[16] On home-based exposure specifically, it has been estimated that in 2010 6.1% of lung cancer cases in men and 6.7% of lung cancer cases in women were attributable to cohabitation with a smoking partner.[2]

While it is promising that fewer people are choosing to smoke inside their homes,[5] research indicates that the home remains a source of second-hand smoke exposure for both adults and children.[17] US research found that among non-smokers home-based exposure to second-hand smoke was about ten times higher compared to work-based exposure.[16] There is limited Australian research on exposure to second-hand smoke in multi-unit housing, however existing research suggests that people who live in multi-unit housing are more likely to be exposed to second-hand smoke compared to those living in separate housing.[17] A recent New South Wales based study examining the relationship between second-hand smoke exposure, socioeconomic status and housing type found that residents of multi-unit housing were 20% more likely to report exposure to second-hand smoke in their home than residents of houses.[17] Research conducted overseas has found comparable associations between housing type and exposure to second-hand smoke[18][19] and a review of research undertaken in the US found high rates of second-hand smoke exposure among residents of multi-unit housing, ranging from 26% to 64%.[13]

Increased exposure to second-hand smoke among non-smoking residents of multi-unit housing is likely due to the fact that smoke infiltration is not easily contained within smoking areas. Air sealing and ventilation changes can reduce smoke drift from apartments where residents smoke indoors, but cannot completely eliminate it.[20] Indeed, ventilation rates for second-hand smoke were removed from the Australian Standards on the use of ventilation and airconditioning in buildings - Mechanical ventilation in buildings because the National Occupational Health & Safety Commission[21], a number of State and Territory Building Control Administrations[22] and the Australia Building Code Board[23] could not endorse a standard[24] with ventilation rates for second-hand smoke as this implied acceptance of the safety of indoor smoking.

Studies measuring air-nicotine concentrations and particulate matter of a diameter less than 2.5 microns (PM2.5) have shown air pollution increases in areas where smoking occurs and in adjacent homes and common areas.[25][26][27] This suggests that smoke can easily spread via door and window jambs, mechanical ventilation and air conditioning systems, elevator shafts, hallways, stairwells, cracks in walls, balconies and courtyards.[28][25][27] Partial smoking bans (where smoking is permitted in private units only) have been shown to increase, rather than decrease, second-hand smoke exposure among non-smoking residents.[19]

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Smoke infiltration should be addressed like other common issues involving cooperation within shared living arrangements

Given the shared nature of apartment living, regulations establish model or default “by-laws” that govern the behaviours and activities of owners and occupiers of apartment blocks. These by-laws can be amended and adapted by owners corporations, within their by-law making powers (discussed below). Rules mandated by by-laws cover matters like pet ownership, drying of laundry items, garbage disposal, floor coverings, parking and noise. No jurisdiction has a model by-law that specifically addresses smoking, even though smoke penetration is a serious health hazard, unpleasant, and a common cause of dispute among neighbours. People living in apartment blocks not only share space and infrastructure, but they also share the air. For this reason, smoking and smoke penetration should also have specific rules to help aid safe and harmonious living environments.

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The current regulatory framework is inadequate

There are various laws and regulations across jurisdictions that, in particular circumstances, may provide potential avenues for seeking to address smoke-infiltration in the home. These include strata, residential tenancies, equal opportunity and public health laws, as well as common law nuisance principles. The lack of reported adjudicated decisions across most of these avenues indicates they are not widely used ways for trying to deal with smoke infiltration. There are a small number of reported cases under strata laws in Queensland and New South Wales (discussed further below).

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Current powers of owners corporations to make rules on smoking

No strata regime in any Australian jurisdiction currently includes laws or model by-laws directly addressing smoke infiltration. Although, in October 2015 the NSW Parliament passed the Strata Schemes Management Act 2015 (NSW) which includes a note that smoke infiltration may be considered a nuisance and/or a hazard. Owners corporations across state and territory jurisdictions have powers to create their own by-laws about a range of matters relevant to common property and lots. It is open to owners corporations to create by-laws that specifically address smoke infiltration, so long as the by-law falls within the powers of the owners corporation.

By-law making powers vary between jurisdictions and there is limited reported case law considering the validity of by-laws that restrict or prohibit smoking.iii

Case law suggests that owners corporations in New South Wales do have the power to create model by-laws prohibiting smoking in private lots and/or common property. In particular, in the case of Salerno v Proprietors of Strata Plan No 42724 (1997) 8 BPR 15,457, the NSW Supreme Court confirmed the validity of a model by-law that banned smoking on common property and within any lot.iv

In other jurisdictions, case law is a little less clear. It is possible that owners corporations in Northern Territory[29], Victoria[30] v and Western Australia[31] vi have the power to prohibit smoking completely (on common property and within lots) and that owners corporations in the ACT[32], Queensland[33], South Australia[34], and Tasmania[35] can ban smoking on common property and restrict or regulate smoking within lots (without banning it completely).vii

However, there are limitations on by-law making powers including that by-laws need to be consistent with strata and other laws (every state and territory except Tasmania)[36][37][38][39][40][41][31][42] viii, cannot discriminate between unit owners or occupiers (Northern Territory[43], Queensland[44], SA[45], Tasmania[46], and Victoria[47]) cannot be oppressive and/or unreasonable (Queensland[48] ix and Tasmania[49] x) and cannot be harsh, unconscionable or oppressive (NSW).[50] Because there is no smoke infiltration related strata case law considering these issues, it might be difficult for owners corporations to gauge how far they can go in banning or restricting smoking. A model by-law on smoke infiltration would help overcome this uncertainty.

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Existing strata provisions

In the absence of a by-law specifically addressing smoking, there are reported adjudicated decisions where residents have sought to rely on the existing general “hazard” and/or “nuisance” provisions to try and deal with smoke infiltration.

In summary, each jurisdiction has either a statutory provision or model by-law dealing with “nuisances” and/or “hazards”.[51][52][53][54][55][56] xi [57][58] xii With regard to use of a lot, all jurisdictions, except Victoria, have a general prohibition on use of a lot that causes a nuisance to an occupier of another lot.[59][52][60][54][55][56] xiii [57] xiv Victoria has a model by-law prohibiting use of a lot that causes a “hazard to health”[58] and New South Wales[51], Queensland[52] xv and the ACT[57] also prohibit use of a lot that causes a “hazard” to another lot. Strata laws in each jurisdiction also include provisions prohibiting interference, or obstruction of lawful use and enjoyment, of common property.[61][52][60][62][63][64][65] The nuisance and hazard provisions have been tested in New South Wales and Queensland Tribunals on smoke infiltration matters.

In New South Wales, the Consumer, Trader and Tenancy Tribunal accepted that smoke infiltration was causing a nuisance on the basis of what it described as “informal” evidence in the form of emails containing complaints about cigarette smoke over different days.xvi In another case, the New South Wales Civil and Administrative Tribunal characterised second-hand smoke as a “hazard” and accepted that the complainants were being exposed to second-hand smoke on the basis of similarly informal evidence such as statements from the complainant, health evidence, photographs of a screen which failed to block the smoke infiltration and submissions from neighbours.xvii

There have been a number of smoke infiltration cases in Queensland, but all have been dismissed.xviii In all of these cases only the general statutory prohibition on causing a nuisance or unreasonable interference was considered; there was no explanation as to why the general statutory prohibition on causing a hazard was not considered applicable to second-hand smoke.

In applying the common law of private nuisance, the Queensland Civil and Administrative Tribunal held that the neighbour must prove the smoke infiltration they experience is of “such a volume or frequency that it would interfere unreasonably with the life of another lot owner of ordinary sensitivity”.xix The fact that someone might be particularly sensitive to second-hand smoke is not relevant as nuisance must be considered objectively against an ordinary person without any sensitivities to second-hand smoke.xx Proving “unreasonable interference” requires proof of a “substantial degree of interference”, not a mere “inconvenience”.xxi Evidence of volume and frequency expected in Queensland includes an independent air quality monitoring report from a person with appropriate qualification and expertise.xxii

Under the test currently applied in Queensland, tribunals are essentially tasked with determining “reasonable standards” of exposure to second-hand smoke when in reality there is no safe level of exposure. In this way the approach taken to smoke infiltration related nuisance complaints under Queensland strata laws has not kept pace with the scientific evidence on harms associated with even low levels of second-hand smoke exposure. Clarifying in legislation that smoke infiltration can be considered a nuisance and/or a hazard in this setting would increase the potential for nuisance and hazard provisions to deal with this issue and would better align legislation with scientific evidence on the harms of second-hand smoke.

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The community is ready for action on smoke infiltration in multi-unit housing

Australian states and territories continue to successfully create smoke-free public places in an incremental way[66] and studies demonstrate strong levels of community support for these kinds of measures.[67][68][69][70][71] Regulating smoking in private spaces is not without precedent in Australia, as legislation across almost every State and Territory bans smoking in cars when children are present[72][73][74][75][76][77] and prohibits smoking in homes in certain circumstances when they are used as workplaces.[78][79][80][81][82][83]

There is currently a lack of Australian survey data measuring community support for smoke-free requirements in multi-unit housing. Other Australian survey data indicates that the community is ready for governments to consult and act on smoke infiltration in multi-unit housing. The 2013 National Drug Strategy Household Survey has 81.9% of Australian adults reporting that no one at home regularly smokes, up from 77.5% in 2007.[5] Cancer Council Victoria data on smoking in the home shows a significant increase in the proportion of smokers reporting that they always or usually smoke outside the home – from 53% in 1998 to 84% in 2013.[84] In 2014 Queensland Department of Health Research, 57% of adults reported that their home is entirely smoke-free (with smoking not allowed inside or outside their home).[85] In 2014 the NSW Population Health Survey found that 93% of respondents reported that their home was smoke-free.[86] Encouragingly, US and Danish data shows support for smoke-free policies in multiunit housing[87][88][89][90][91][92] and in public and subsidised multiunit housing.[93][94][95][96][97]

There are examples of owners corporations moving forward with implementing smoke-free living in Australia. A content analysis of a sample of strata by-laws in NSW found that 5% had any type of smoking restriction, 4% banned smoking in common areas, 2% banned smoking situations where smoke could infiltrate common property or the lot of another resident, and just less than 1% prohibited smoking altogether. The same study suggested that smoking restrictions in strata schemes are becoming more common, with 40% of observed smoking restrictions introduced within the past three years (since 2012).[98]

International research has also shown high levels of interest by owners and managers in adopting smoke-free policies.[99] Landlords have tended to over-estimate the negative commercial impact of proposed smoke-free policies.[100]However, following implementation, the actual impact of smoke-free policies on vacancy and turnover has been shown to be small[101], neutral or positive.[90] Internationally, there are also growing calls for smoke-free multi-unit housing policies to protect children’s health.[102][103]

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National policy approaches

In 2008 a National Preventative Health Taskforce was tasked with developing a national preventative health strategy for Australia. The Taskforce’s 2009 report, Australia: The Healthiest Country by 2020, made a number of recommendations aimed at reducing the chronic disease burden associated with obesity, tobacco and alcohol. Recommendations for tobacco control included (among many other measures) taking action to protect residents from exposure to smoke-drift in multi-unit developments.[7] In making this recommendation the Taskforce highlighted policy options of requiring (through legislation) that the smoking policy in shared and indoor areas of multi-unit apartments be specified in residential lease agreements and that all shared areas (lifts, stairwells, walkways, car parks) in multi-storey public housing developments be smoke-free.[7]

A Tobacco Working Group technical report prepared for the Preventative Health Taskforce went further in some respects by proposing that all state governments legislate to require both leases for multi-unit apartment buildings as well as condominium sales agreements to include terms governing smoking. The technical report also proposed that owners could be encouraged to make common areas smoke-free and to consider making large sections of apartment complexes completely smoke-free.[104]

The Taskforce’s recommendation on taking action to protect residents from exposure to smoke-drift in multi-unit developments was adopted in the Government’s response to the Taskforce’s report.[7] Following this the National Tobacco Strategy (2012-2018) included an action item on monitoring the issue of smoking and smoke-drift at residential premises and the consideration of policy approaches to support smoke-free homes, particularly where children are present.[8] We believe that all options identified by the Taskforce and technical report should be considered and that strata law reform should be an important part of protecting residents of multi-unit housing from second-hand smoke exposure.

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Action by states and territories

Three states and territories – New South Wales, Queensland and the ACT – currently recognise smoke infiltration as an action area for tobacco control in publicly available policy documents. During a 2012 consultation on strata law reform in New South Wales, smoking generated more comments than any other topic, with the overwhelming majority of correspondents strongly objecting to being subjected to second-hand smoke in strata buildings.[105] The New South Wales Tobacco Strategy 2012-2017 includes an action item on supporting the implementation of smoke-free multi-unit residential dwellings by strata organisations through the promotion of guidelines.[106] The Strata Schemes Management Act 2015 (NSW) (2015), which passed through NSW parliament in October 2015, goes further by including a note to accompany the statutory nuisance provision that “[d]epending on the circumstances in which it occurs, the penetration of smoke from smoking into a lot or common property may cause a nuisance or hazard or interfere unreasonably with the use or enjoyment of the common property or another lot.”[107] A model by-law addressing smoke infiltration will also be included as part of strata reform in New South Wales.[108][109] The NSW Government has released draft regulations, which include proposed model by-law options addressing smoke infiltration.[110]

The Queensland Government established a review of Queensland’s property laws that is considering (among many matters) the issue of smoke infiltration. The regulation of smoking in lots and on common property was among the issues raised during stakeholder meetings.[111] The consultation sought feedback on a proposal to empower bodies corporate to prohibit smoking on balconies or where a structure is within four metres of another structure on an adjacent lot as well as any other ideas for how smoking could be dealt with by bodies corporate.[112] The report noted “The law has increasingly recognised a need to protect non-smokers from the harmful effects of second hand smoke in public areas and workplaces. There is little reason not to extend this protection to people in a community title scheme. Residential bodies corporate are one of the only places of concentrated occupation to which no power is given to restrict (or prohibit) smoking except on common property.”[113] The report on the consultation was yet to be released at the time of preparing this position statement.

The ACT recognises smoke-drift in multi-unit developments as part of its work on restricting places of tobacco use under its plan for future directions for tobacco reduction in the ACT (2013-2016).[114] The plan has March 2015 noted for project commencement for this area. No public updates were available at the time of preparing this statement.

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Policy approaches and trends overseas

The United States (US) Department of Housing and Urban Development has announced a new rule requiring all 3100 public housing agencies across the US to implement a complete ban on smoking indoors and within 25 feet (approximately 9m) of buildings.[115] Since 2009 they have been strongly encouraging public housing authorities to adopt smoke-free policies.[116][117] For example, the Boston Housing Authority made all its 64 developments (housing 27,000 people) smoke-free in 2012.[27] By November 2015 more than 600 authorities and tribally designated housing entities have adopted smoke-free policies. This rule is necessary to protect children[118] and families from second-hand smoke exposure[119], and is expected to generate cost savings of $153 million annually[120] and accord with residents’ expectations of clean air.[121]

In addition, the US Centers for Disease Control and Prevention and the US Surgeon General have actively encouraged adoption of smoke-free policies in all multi-unit housing in their Smoke-Free Policies in Multiunit Housing manual[122] and their Call to Action to Promote Healthy Homes.[123]

As is the case in Australia, state and local governments in the United States (US) regulate smoke-free environments. Among US state and local governments, laws that explicitly make rules regarding smoking in multi-unit housing are becoming more prevalent. In October 2015 the American Nonsmokers’ Rights Foundation reported that five US states had adopted or passed laws to prohibit smoking in private units of state owned, managed or financed public housing (Delaware, Hawaii, Maine, Montana and North Carolina).[124]

Some states have also adopted laws relating to smoking in market-rate multi-unit housing. Specifically a number of states:

  • require rules (or lack of rules) about smoking to be disclosed to potential renters;[125][126] or
  • acknowledge in state law the existing authority of building management to enact rules about smoking on the property into state law;[127] and/or
  • recognise in state law that regular “tobacco smoke that drifts into any residential unit a person rents, leases or owns, from another residential or commercial unit” is a nuisance.[128]

Additionally, a number of Californian local governments restrict or prohibit smoking in some or all multiunit housing complexes within their jurisdiction. As of April 2015:

  • 16 Californian governments had enacted local laws to prohibit smoking in multi-unit housing complexes - in both private and common areas.
  • An additional 27 Californian governments had enacted local laws to restrict smoking in private areas of some, but not all, multi-unit housing complexes. Some of these partial smoke-free laws prohibit smoking in only a proportion of units while other laws require all new buildings or all newly leased units to be smoke-free.[124] xxiii

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Our recommendations

We contend that state and territory governments should:

Clarify that the prohibitions on nuisance, hazard and unreasonable interferences in their respective Acts or model by-laws apply to second-hand smoke. Those jurisdictions that do not currently have strata provisions dealing with hazards should introduce these.

This approach reflects the fact that there is no safe level of exposure to second-hand smoke. Because second-hand smoke is a health hazard, it may be more appropriate for it to be dealt with under provisions dealing with such.

Develop a model by-law addressing smoking

Model by-laws are generally found in schedules to the strata legislation and apply by default, unless deleted, amended or added to by the owners corporation. There are specific issues that are a common cause of dispute between residents of apartment blocks that are subject to model by-laws, such as the keeping of pets[129][130][131][132], floor coveringsxxiv, parkingxxv and noise control.xxvi Smoke infiltration is another common cause of dispute between neighbours in apartment blocks, yet no strata regime in any jurisdiction contains a model by-law on smoking. A model by-law on smoking should be adopted in each jurisdiction and act as a minimum standard which owners corporations can adapt.

Specifically, we recommend that a model by-law be adopted which includes a tier of options or ‘choice of rules’ available to owners corporations regarding the issue of smoking (ranging from highest to lowest protection). We recommend that the tiers or ‘choices’ be comprised of the following:

Tier 1 – Smoking is prohibited in all common areas and private lots (including private balconies).

Tier 2 – Smoking is prohibited in all common areas. Smoking is permitted in private lots, provided the smoke does not infiltrate common areas or other private lots.

As noted further above, there is some evidence to suggest that partial smoking bans (which permit smoking in private lots, but not in common areas) may actually increase, rather than decrease second-hand smoke exposure among non-smoking residents. A US study undertaken in 2014 used data from the 2011 Social Climate Survey on Tobacco Control, and found that partial smoke-free policies in multiunit housing were associated with a higher likelihood of second-hand smoke incursion in individual lots of non-smoking residents.[19] It is thought that restricting smoking to private lots only may increase smoking behaviour inside these lots, and therefore increase the likelihood of smoke drifting into neighbouring lots. The results of the study indicate that the most effective way to minimise smoke infiltration in multi-unit housing is a comprehensive ban that prohibits smoking in both common areas and private lots.

We therefore recommend that the ‘less restrictive’ tiers still prohibit smoking in private lots where smoke is capable of infiltrating neighbouring lots or common property. This is intended to avoid a situation whereby partial bans adopted by owners corporations have the unintended consequence of increasing second-hand smoke exposure among non-smoking residents.

We note that it would be preferable for ‘Tier 1’ in the above example to operate as the default tier where an owners corporation has not made a choice between the two tiers.

In adopting a model by-law addressing smoke infiltration, we note that it is also important to consider the evidentiary issues which may arise when it comes to enforcing such a by-law. As noted further above, when applying the common law of private nuisance, adjudicators in Queensland have been known to require complainants to obtain independent air quality monitoring reports as evidence of smoke infiltration.xxvii In our view, this situation should be avoided. It is unreasonable and unrealistic to require members of the public to undertake independent air quality monitoring as equipment of this nature is normally used in industrial settings. Access to this type of equipment would be difficult and costs would likely be prohibitive. In addition, given that there is no safe level of exposure to second-hand smoke, the time taken to gather such expert evidence in order to prove that a model by-law regarding smoke infiltration has been breached could result in prolonged and unnecessary exposure of complainants to second-hand smoke. We therefore recommend that each jurisdiction consider amending the relevant regulations to make it clear that expert evidence regarding air quality is not required in order to prove that a model by-law addressing smoke infiltration has been breached. It should be sufficient for a complainant to produce informal evidence demonstrating that smoke infiltration has occurred (e.g. witness statements, inspection by an owners corporation, diary entries etc.).

Specify in legislation that owners corporations have the power to make by-laws that ban or restrict smoking on common and private property and clarify the scope of such powers.

Given how complex it can be to determine whether or not a proposed by-law falls within the by-law making powers of an owners corporation, strata laws should explicitly provide that owners corporations are empowered to regulate smoking or ban it entirely to go completely smoke-free. This is appropriate for a behaviour that causes serious health risks to those exposed to second-hand tobacco smoke. Alternatively, strata law could acknowledge that owners corporations have the power to create a right to clean airxxviii xxix, in a by-law, (just as a by-law may create, and arbitrators have enforced, a right to a view).xxx

Prohibit smoking in specific common areas and building entrances.

Queensland and South Australia already have specific provisions in place under tobacco control laws banning smoking in common areas of multi-unit apartments.[133][134] NSW bans smoking in common areas considered to be enclosed public places. Given the shared nature of these spaces, all jurisdictions should adopt measures that prohibit smoking in common areas of multi-unit apartments.

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Notes

i ↑ “By-Laws” are rules that apply to Owners Corporations. Default or model by-laws generally apply automatically upon the creation of a new apartment block title and can be amended by Owners Corporations (within by-law making powers).

ii ↑ State and Territory jurisdictions use different language to describe strata laws and entities. This article uses the title “Owners Corporation” to refer to such entities (Vic, NSW, ACT), as well as equivalent entities referred to as “bodies corporate” (Queensland, Tasmania) “strata corporations” (Western Australia) and “community corporations” (Northern Territory).

iii ↑ See for example, Salerno v Proprietors of Strata Plan No 42724 – BC9701114 and Admiralty Towers [2014] QBCCMCmr 264 [51].

iv ↑ See also Owners Corporation SP 49822 v May & Ors (Strata & Community Schemes) [2006] NSWCTTT 739 (6 November 2006); and Bill Sheath and Rhonda Sheath v Rick Whitley and Sandra Whitley [2014] NSWCATCD 44 for adjudicated decisions where smoke drift was considered a nuisance/hazard (respectively). See Casuarina Rec Club Pty Ltd v The Owners – Strata Plan 77971 [2011] NSWCA 159 for authority for the propositions that a by-law dealing with the same subject matter as a model by-law cannot be held to be ultra vires and the power to make by-laws should be generously construed.

v ↑ See also, for example, Owners Corporation PS331362S v Rhodes (Owners Corporation) [2011] VCAT 642 (13 April 2011), which held that a by-law imposing a blanket prohibition on using a lot for commercial purposes fell within by-law making powers.

vi ↑ See also Mackie v Henderson [2011] WASC 197 (19 August 2011), where the following observations were made (at [22]): “The starting point is that it is trite that by-laws frequently interfere with the property rights of the owner of a lot. They can also interfere with a myriad of personal rights in relation to the lot. The range of possible by-laws can be extremely broad. For instance, in Sydney Diagnostic Services Pty Ltd v Hamlena Pty Ltd (1991) 5 BPR 11,432 the New South Wales Court of Appeal upheld a by-law which prohibited the owner of a lot from engaging in any enterprise on the lot other than the medical practice of pathology. This by-law fell within the power to make by-laws 'for the purposes of the control, management, administration, use, or enjoyment of the lots'.”

vii ↑ The difference being that New South Wales, the Northern Territory, Victoria and Western Australian strata laws give owners corporations power of “control” over private lots and common property, whereas strata laws in the ACT, Queensland, South Australia and Tasmania either provide powers of “regulation” or other non-control related powers.

viii ↑ By-laws in Tasmania will be void if they are inconsistent with the provisions of a scheme: Strata Titles Act 1998 (Tas) ss 91(3)(d)

ix ↑ Recent Queensland cases considering these issues include McKenzie v Body Corporate for Kings Row Centre CTS 11632 [2010] QCATA 57 (28 September 2010); Body Corporate for River City Apartments CTS 31622 v McGarvey [2012] QCATA 47 (12 March 2012); L'Colonial Court [2008] QBCCMCmr 332 (18 September 2008); Law and Property Management Pty Ltd ATF Law and Property Family Trust v Body Corporate for Paradise Palms CTS 23869 [2012] QCAT 669 (19 December 2012).

x ↑ “Reasonableness” is considered in the case of Taunton Enterprises Pty Ltd Appeal Against Order No. C579394 Strata Title Act [2005] TASRMPAT 76 (4 April 2005).

xi ↑ In NT nuisance is expressed as conduct in a lot or common property that would “unreasonably affect a person’s lawful enjoyment” of lots or common property.

xii ↑ In ACT use of a lot that causes a “substantial annoyance” is also prohibited.

xiii ↑ In NT nuisance is expressed as conduct in a lot or common property that would “unreasonably affect a person’s lawful enjoyment” of lots or common property.

xiv ↑ In ACT use of a lot that causes a “substantial annoyance” is also prohibited.

xv ↑ Queensland is the only jurisdiction to the prohibit use of a lot or common property in a way that causes a hazard to another lot or common property.

xvi ↑ Owners Corporation SP 49822 v May & Ors (Strata & Community Schemes) [2006] New South WalesCTTT 739 (6 November 2006).

xvii ↑ Bill Sheath and Rhonda Sheath v Rick Whitley and Sandra Whitley [2014] NSWCATCD44 at [7-][12]

xviii ↑ See North Shore Apartments [2003] QBCCMCmr 505; Villas Mermaid [2005] QBCCMCmr 582; Bacala Park [2006] QBCCMCmr 412 to 417; Heritage Village Ormiston West [2007] QBCCMCmr 565; Norbury v Hogan [2010] QCATA 27 and Sun Crest [2010] QBCCMCmr 524; Admiralty Towers [2011] QBCCMCmr 264; Carson Place [2012] QBCCMCmr 503.

xix ↑ Norbury v Hogan [2010] QCATA 27 at [28]; and applied in Admiralty Towers [2014] QBCCMCmr 264 and Carson Place [2012] QBCCMCmr 503.

xx ↑ Norbury v Hogan [2010] QCATA 27 at [18], [27] and [31].

xxi ↑ Norbury v Hogan [2010] QCATA 27 at [15]-[17].

xxii ↑ Sun Crest [2010] QBCCMCmr 524; Admiralty Towers [2011] QBCCMCmr 264 at [20], [26] and [49]; Carson Place [2012] QBCCMCmr 503 at [25]-[29].

xxiii ↑ See example: Santa Monica Municipal Code §4.44.040 (2012)

xxiv ↑ See for example, Strata Schemes Management Act (NSW) Schedule 1, by-law 14; Strata Titles Act 1985 (WA), Schedule 2, by law 10.

xxv ↑ See for example, Owners Corporations Regulations 2007 (Vic), Schedule 2, model rule 3.2; Strata Schemes Management Act (NSW) Schedule 1, by-law 2; Unit Titles Schemes Act (NT), Schedule 2, by-law 3; Body Corporate and Community Management Act 1997 (Qld), Schedule 4, by-law 2; Strata Titles Act 1998 (Tas), Schedule 1, model by-law 9; Strata Titles Act 1985 (WA), Schedule 2, by law 1.

xxvi ↑ See for example, Owners Corporations Regulations 2007 (Vic), Schedule 2, model rule 5.2; Unit Titles (Management) Act 2011 (ACT), Schedule 4, default rule 8; Strata Schemes Management Act (NSW) Schedule 1, by-law 1; Body Corporate and Community Management Act 1997 (Qld), Schedule 4, by-law 1.

xxvii ↑ Sun Crest [2010] QBCCMCmr 524; Admiralty Towers [2011] QBCCMCmr 264 at [20], [26] and [49]; Carson Place [2012] QBCCMCmr 503 at [25]-[29].

xxviii ↑ Walter v Selfe (1851) 64 ER 849, at [321]

xxix ↑ St. Helen’s Smelting Co. v Tipping (1865) 11 HLC 642

xxx ↑ Coronation Towers [2006] QBCCMCmr 229 under the heading ‘Right to a view”; Bayview Mansions [2005] QBCCMCmr 53; and Currumbin Views [2004] QBCCMCmr 665 in the Determination.

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