NSW: Q&A Smoke Drift From Neighbour Who Smokes Outside

Question: How do we handle the other duplex lot owners who smoke outside their lot. Smoke drifts over the dividing fence and into my aging father’s lot.

We are looking for information about how to handle the other lot owners who smoke in the back yard of their duplex. The smoke drifts over the dividing fence into my aging father’s lot. The neighbours smoke in an area that is roughly 3m away from his back door and bedroom. This is particularly an issue as he is on the dust disease register.

We have tried NCAT but the matter was rejected in the Administrative Tribunal.

Answer: Smoking could be construed as a trespass, a private nuisance and constitute a violation of your father’s right to quiet enjoyment of his property.

On the assumption you do not wish to further pursue your rights through NCAT, depending on the strength of your evidence, smoking could be construed as a trespass, a private nuisance and constitute a violation of your father’s right to quiet enjoyment of his property.

Question: For the last few months, the tenant in the apartment above ours regularly sits and has a smoke on the balcony. Their smoking causes smoke drift into our flat each time they smoke on the balcony. What can we do?

I have been the tenant in my building for the past 9 years.

For the last few months, the tenant in the apartment above ours regularly sits and has a smoke on the balcony.

Their smoking causes smoke drift into our flat each time they smoke on the balcony. We know it’s them because we hear their sliding door and can see their reflection in the windows of the opposite building.

During the day and evening, we like to have our balcony door and bedroom windows open to allow fresh air to circulate and find that we are needing to close these every time the tenant has a smoke on the balcony (which can be in the 10’s during the weekend days).

I am also an asthmatic whose asthma is triggered by smoke and therefore find this to be a wider health issue and nuisance and would like to know what we can do.

Answer: We do not know whether your building has the smoke drift by-law, we confirm that the legislation virtually regulates same.

While we do not know whether your building has the smoke drift by-law, we confirm that the legislation virtually regulates same – see highlighted section below:

153 Owners, occupiers and other persons not to create nuisance

1. An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not:
   • use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
   • use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or
   • use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.
     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.
2. This section does not operate to prevent the due exercise of rights conferred on a developer by the operation of section 82 of the Strata Schemes Development Act 2015.

Division 1 of Part 6 contains provisions about the circumstances in which owners of lots may carry out work that affects common property.

Seeking orders from NCAT

You may wish to seek orders from NCAT to prohibit the smokers from smoking (mediation must first be attempted), or you might wish to request that the Owners Corporation pass a non-smoking or smoke-drift by-law.

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Please note that this article is provided for information purposes only and is not a substitute for professional legal advice.