Smoking ban - a breakthrough
Well, it’s been such a long time coming, but finally for Queenslanders living in Strata Communities, it may be easier to get that irritating (and dangerous) wafting cigarette smoke stopped.
As you can read in our (much) earlier article, the frustration of getting Body Corporate and Community Management Adjudicators to order a no-smoking rule, has been their reference to a strange bit of Case-Law relating to ‘Nuisance’.
The breakthrough in this landmark new Adjudication was the application of the ‘hazard’ factor of the drifting balcony ‘passive’ smoke.
The Body Corporate in question was Artique CTS 34902, and a couple of other points should be noted. Firstly, the Adjudicator rapped the Committee over the knuckles for deeming it satisfactory for the two residents concerned to sort the matter out - the Adjudicator pointed out to the Body Corporate that enforcing their By-Laws - in this case the By-Law on smoking, was mandatory, and not something they could backhand to affected residents. The other issue was the smoker herself who was of the belief that “By-Laws weren’t the Law, and she didn’t have to obey them” - the Adjudicator sorted her out on that point too.
And finally, this is another Adjudication that is illustrating just how long it can take to get an Adjudicator’s Order - this one took a year. And preliminary Conciliation failed to get the smoker to curb her practice.
You can download a PDF of the Adjudicator’s Order here.
Here is the article we wrote a decade ago about the frustrations of banning smoking in Strata Schemes:
How a bit of 19th Century nonsense is ruining our dinner.
"..cigarette smoke might only be a 'nuisance' to a person of elegant or dainty modes and habits of living.."
Charles Dickens was walking the streets of London and at the time writing "Little Dorrit".
It was the middle of the 19th century - cholera was rampant, and raw sewage poured freely into the Thames.
It got so bad that Parliament itself took recess when the stench from the river made it impossible to conduct business - that event was referred to later as "The Great Stink".
On March 24th 1851 on a cold and wet morning in nearby Surrey, there was, along with the cold and the mist, some smoke about, and it was because of this smoke that land owner William Walter entered court to plead his case and seek an injunction against his neighbour John Selfe.
It seems that Mr. Selfe had taken to a new business of digging up the clay on his land and firing bricks, and the considerable smoke generated by the new enterprise was causing much distress to plaintiff Walter.
160 years later, sitting on your apartment balcony, perhaps sipping a chilled riesling with dinner, you might wonder what all these 19th century events have to do with you.
You'll likely have come from a workplace that's been mandated smoke-free for nearly two decades, walked through a smoke-free city mall, traveled home in a smoke-free train that you boarded in a smoke-free railway station.
Unfortunately, as you now sit down to dinner on your balcony you are assailed by the noxious, awful stench of the cigarette smoke from a couple of the residents on their balcony barely ten feet below.
Now living in a modern fairly dense strata title community, governed under the most advanced Strata Title legislation of the 21st century, as Queensland's is, you'd think that it would be easy to get relief from this very stressful 'smoke-at-home' situation.
After all, one of the fundamental tenents of modern Strata Title law is that each Community is able to make rules for the common good of the residents - they are able, to a significant extent, democratically govern themselves. So it should be a simple matter of the Body Corporate just resolving to approve a new By-Law prohibiting smoking on balconies and Common Property, or perhaps anywhere in the complex. But you'd be wrong, you've just come slap up against 19th Century's "dainty person" Common Law definition of 'Nuisance'.
Our current predicament with anti-smoking By-Laws in Queensland dates back to that courtroom in Surrey in 1851, where the judge in summing up felt he had to come to grips with a definition of 'nuisance and inconvenience', and in part said:
"And both on principle and authority the important point next for decision may properly, I conceive, be thus put : ought this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people ."
And so these now immortal words, "elegant or dainty modes and habits of living" - in other words, something like cigarette smoke might only be a 'nuisance' to a person of elegant or dainty modes and habits of living, has been seized on by our Commissioner's Office Adjudicators and Tribunal 'beaks' as the only relevant bit of Common Law to define such 'nuisance' - we wonder just how hard they tried, and how much they realise just what a joke all this is. And we wonder also how hard they are agitating for some new statute law that would override this bit of quaint Dickensian nonsense now that we live in an era of smoke-free workplaces and environs and can detect a single noxious cigarette smoke particle at 200 yards.
And the amusing thing about all this is, back in the Surrey courthouse, in 1851, Mr Walter got his injunction - he was even successful on appeal!
But it's the legacy of the judge's summing up musings that have been referenced time and again in our Adjudicator and Tribunal Orders.
