A case was recently decided about smoke escaping from one lot to another. Though this is an area of common complaint, disputes rarely reach the Tribunal where it is tested. Gisks v The Owners Corporation – Strata Plan No 6743  NSWCATCD 44 is a case which did. The hearing revolved around the provisions of Section 153 of the Strata Schemes Management Act 2015. Section 153 in summary states:
There is a note to the section which was relied on as follows:
Note : Depending 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 and may interfere unreasonably with the use or enjoyment of the common property or another lot.
The Tribunal also referred to the case of Bill Sheath and Rhonda Sheath v Rick Whitely and Sandra Whitely  NSWCATCD in which Senior Member Buckley found that smoking was a hazard.
Smoking is not illegal, except as prohibited by various restrictions of smoking in a public area, specifically as referred to in the Smoke-free Environment Act 2000, which outlaws smoking within certain public areas both inside and out. There is no legislation which prevents a homeowner smoking in his own backyard, bedroom, lounge room, wherever within the boundaries of the home that he either owns or rents. That is not necessarily the case with a strata scheme, by virtue of the provisions of Section 117 of the SSMA, which is in terms of a mandatory prohibition – “an owner lessee or occupant must not …… cause a nuisance or hazard to the occupier of any other lot..” It is not necessary to establish intention. I determine that the risk of exacerbation of respiratory symptoms is a “hazard” within the meaning of s 117(1)(A) of the SSMA.
In this case, the owner suffered from respiratory complaints and the Tribunal found this was particularly a hazard in their situation. Section 117 in the Strata Management Act 1996, referred to in the Sheath Case, was not identical to that being considered in the Gisks Case (section 153) but it was substantially in the same terms as the current section, especially in its reference to “an owner lessee or occupant must not ….cause a nuisance or hazard to the occupier of any other lot.”
The Tribunal also referred to the case of Adams v New South Wales Land & Housing Corporation  NSWCATAP 31 at  where the Appeal Panel summarised the definition of a private nuisance as follows:
‘In summary, the main features of a private nuisance are:
(a) an interference, by the defendant (tenant) in his/her use of his/her land (premises), with an occupier’s (neighbour’s) use and enjoyment of his/her land (premises) – an interference can be physical damage to property or person and non-physical damage (e.g. damage caused by air pollution, vibration, noise and dust). However, the damage must at all times be to the occupier’s (neighbour’s) use and enjoyment of his/her land (premises);
(b) the interference must be substantial and unreasonable; and
(c) the test as to whether the interference is substantial and unreasonable is objective.’
The Tribunal preferred the evidence of the Lot Owner and relied on Sheath and Adams to form its decision.
To those smokers in doubt take note, particularly if you are living in a strata complex, smoking is a health hazard.