New Model By-law Series #2 – Smoking

Over the next 10 weeks we’ll be looking at the revisions to NSW’s model by-laws, which come into force on November 30 2016. They won’t automatically affect existing owners, but it’s a great time to consider updating your strata scheme’s by-laws to take advantage of the changes.

Smokers’ days may be numbered in strata. Caselaw indicates that adjudicators would rather prohibit smoking than support smokers whose smoke drifts onto common or lot property.

New model by-laws and an instruction on nuisances are likely to empower owners corporations already looking to butt out.

Previously model by-laws didn’t address the issue of cigarette smoke at all. But in the Strata Schemes Management Regulation 2016 there are two options that owners corporations can choose from.

1. No smoking on common property; owners smoking in their own lot, or their visitors, can not allow smoke to drift to common property or other owners’ lots.
2. Smoking on common property allowed on by signage or written permission as long as it doesn’t drift to other owners’ lots; owners smoking in their own lot, or their visitors, can not allow smoke to drift to other owners’ lots.

Schemes that don’t choose one of these options will automatically assume the first, meaning that a lot of new properties will prohibit smoking on common property, and make smoking on balconies or in airier apartments a risky proposition if a neighbour catches a whiff.

Another change to legislation that affects this comes in Section 153 of the Strata Schemes Management Act 2015; previously smoke penetration was an assumed nuisance, while now it is noted to be a possible nuisance or hazard.

For committees and owners alike this is a controversial step that may be welcomed as a whole – both the model by-law changes and the note on nuisance may make breach notices easier and contribute to a culture where smoking is not treated as a right.

But for smokers and committees that don’t want to use by-laws to govern behaviour of that kind, it will create expectations and divisions.

Committees should review their by-laws now and decide what path they want to go down, and be aware that the new by-laws don’t apply unless a strata plan chooses to do so.