ASH comments 23/2/12 to NSW Strata Law consultation

Comments posted under each of the questions below.

Q1.  What are the main areas of the existing strata and community scheme laws you would like to see changed?

ASH 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.

Risks 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.

Australia 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.

Smokefree 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.

Other, 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.

An 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:

• Lack of awareness of some owners’ corporations that action can be taken under strata laws to address the problem of smoke drift;

• The requirement for a 75% majority vote of owners to pass a by-law;

• A tenant will require the permission of their landlord to be eligible to vote at a strata meeting and without this will be disenfranchised from a decision affecting their right to health and safety in their residence;

• Strata laws do not explicitly acknowledge the desirability of effective proactive measures to protect residents from SHS;

• Lack of consistency by the NSW Consumer, Trader & Tenancy Tribunal - while supporting the right of strata corporations to adopt smokefree bylaws, has failed to support individual complaints.
  
  For example: the CTTT in the case of Peter Lavac on 2/8/2007, in a brief decision failed to uphold a complaint against SHS contamination of his home. Mr Lavac, a lifelong non-smoker and champion athlete, had no choice but to leave his home and soon afterwards developed lung cancer – assessed by medical specialists to have been a probable consequence related to his SHS exposure at home.

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.

ASH Australia recommends the following improvements in NSW strata laws to address the problem of SHS exposure from smoke drift in strata and community schemes:

1.   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.

2.   There should be no defence of reasonable or lawful use or enjoyment of a lot where an activity is causing hazard, as with SHS.

3.   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).

4.   Smoking-related Orders should be included in Strata Schemes Management Act 1996 (Chapter 5, Part 4, Orders of Adjudicator).

5.   The legislation should effect the recommendation of the Commonwealth Government-appointed National Preventive Health Taskforce 2009 that:

All 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 rules.

6.   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.

7.   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 indoor areas.

Governments 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 practices.

 

Q2.  Can you see any future issues that need to be addressed in the legislation?

As 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.

Government should consider introducing smokefree housing options for multi-unit housing including aged care, retirement villages, public/community housing and corrective services.

 

Q3.  How could the management of strata and community schemes be improved?

Management 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.

 

Q4.  Are there any changes needed to the way disputes in strata and community schemes are resolved?

It 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 SHS hazard.