|Tobacco smoke drift in multi-unit housing|
comments 23/2/12 to NSW
Strata Law consultation
are the main areas of the existing strata and community scheme laws
you would like to see changed?
Australia has received many and increasing complaints from residents
in strata and community housing who are concerned about health risks
to themselves and their families from secondhand tobacco smoke (SHS)
drifting into their homes from neighbouring units. Many are also
concerned about a lack of clarity and effective action by managers
and authorities. Some families have been driven from their homes by
conflicts and lack of action by owners, agents, authorities and
government to protect residents’ health from smoke drift.
to health from secondhand tobacco smoke (SHS) exposure, even at low
dosage levels, are well established by medical research evidence.
Tobacco smoke is a highly toxic, carcinogenic airborne contaminant
with no safe level of exposure. It should not be trivialised as a
minor irritant or dismissed as a matter of personal choice.
is a signatory to the WHO Framework Convention on Tobacco Control
whose Article 8 commits all levels of government to take
comprehensive steps to protect all people from SHS.
public place and workplace laws are well accepted as being based on
recognition of the serious health impacts of SHS exposure. Although
homes are regarded as private spaces, residents have a right to
protection from others’ smoke infiltrating their living areas and
bedrooms. A right to smoke does not extend to harming others.
less harmful infringements are currently provided stronger
protection under NSW laws. Under the Protection of the Environment
Operations Act, a resident can seek a court-issued noise abatement
order for harmful noise emitted by neighbours. One who is affected
by smoke drift currently lacks similar legal protection.
effective measure for residents in multi-unit housing is to seek
adoption by their owners’ corporation of a by-law making the
premises 100% smokefree. The legality of this approach has been
validated in at least two legal cases in NSW.
However, under current strata legislation, barriers to
effective action include:
The “legality” of tobacco
smoking is dependent on its context, as is the case with many other
activities which are legal in some settings but not others – for
example, driving a car, drinking alcohol, using dangerous machinery,
and playing music at high volume. The guiding principle of
restriction is – as it should be in this case - protection of
others from potential harm and nuisance.
Australia recommends the following improvements in NSW strata laws
to address the problem of SHS exposure from smoke drift in strata
and community schemes:
Legislation should provide definitions of
“nuisance” and “hazard” for the purposes of the legislation,
recognising that SHS is both a nuisance and serious health hazard;
and should establish that tobacco smoke drifting from one lot into
another is a “hazard” under the legislation.
There should be no defence of reasonable or lawful use
or enjoyment of a lot where an activity is causing hazard, as with
A model smokefree by-law should be included in the
Strata Schemes Management Regulation 2010 (Part 9.27, Schedules 2 -
Model by-laws for residential strata schemes).
Smoking-related Orders should be included in Strata
Schemes Management Act 1996 (Chapter 5, Part 4, Orders of
The legislation should effect the recommendation of
the Commonwealth Government-appointed National Preventive Health
Taskforce 2009 that:
state governments …
legislate to require leases for multi-unit apartment buildings and
condominium sales agreements to include the terms governing smoking.
The legislation should
require that all new strata developments comprise sections of
developments that are subject to mandatory smokefree environment
Any proposed strata by-law involving protection of
residents from a physical hazard, such as SHS, should require no
more than a simple majority vote of residents to be passed; and in
votes involving physical hazard, not just owner-residents but all
residents should be eligible to vote.
As retirement villages include a high proportion of
aged residents with health conditions acutely susceptible to
aggravation by even low levels of tobacco smoke, legislation should
require all retirement villages to be 100% smokefree at least in all
should provide resources to inform all parties about the problem of
smoke drift and how to resolve complaints. ASH has produced an
online Smokefree multi-unit housing: a guide for owners, tenants, agents,
authorities and governments at www(dot)ashaust(dot)com which
aims to raise awareness and improve smokefree policies and
you see any future issues that need to be addressed in the
over 83% of the population do not smoke, legislation and policies
should provide more options for residents to choose smokefree
multi-unit accommodation, including designating a proportion of
public and community housing as smokefree.
should consider introducing smokefree housing options for multi-unit
housing including aged care, retirement villages, public/community
housing and corrective services.
could the management of strata and community schemes be improved?
of strata and community schemes should be made fully aware of, and
should clearly advise owners and residents of, smokefree laws,
by-laws and best practices, including compliance and enforcement
obligations, including responding swiftly and effectively to any
complaints of non-compliance. To overcome the current lack of
awareness, there should be clear and accessible guidelines for all
parties on how to deal with smoke drift complaints.
there any changes needed to the way disputes in strata and community
schemes are resolved?
should not be necessary for individual residents to make lengthy
complaints seeking protection from SHS. Protection should be
enshrined in legislation and associated legal processes and strata
management enforcement of smokefree legislation and by-laws. Where
individual complaints occur, there should be a clear pathway for the
complaint to be quickly and effectively resolved. Strata managers
should respond to any SHS complaint as a matter of urgency, bringing
parties together where possible to resolve conflicts, or taking
further action to ensure no delay in protection of residents from