An excerpt from the SCA (Qld) Advocacy Update sent to SCA Members on 19 January 2022:
On 21 December 2021, an Adjudicator in the Office of the Commissioner for Body Corporate and Community Management decided that:
- tobacco smoke drift from the balcony of one lot into a neighbouring lot was a hazard in contravention of section 167 of the Body Corporate and Community Management Act 1997 (Qld);
- orders should be made banning the respondent from smoking on the unit’s balcony, and that if the respondent smokes within the lot then reasonable steps must be taken to ensure that smoke emanating from her lot does not affect any other person, such as by closing windows and doors
The decision is Artique [2021] QBCCMCmr 596. It has not been published as yet.
Parties will still need to follow the process in the Commissioner’s Office, which will more than likely involve conciliation in the first instance, so those steps are not magically removed with this decision.
Significantly, the Adjudicator framed her decision not simply as ‘cigarette smoke’. Rather, it was contextualised as ‘tobacco products’. This would feasibly then capture vaping. While things like cooking smoke and smoke from incense would therefore not be covered, you can see how those things might also be viewed as a ‘hazard’ in the future.
This decision is a significant change to how adjudicators will deal with complaints about smoke drift.
