The presence of second-hand smoke is a corollary of smoking. If you are on the street, breathing in second hand smoke is hopefully a passing inconvenience. However, it is a much more serious issue when it occurs in your home.
The current law in Victoria is unclear as to the rights of lot owners to live in a smoke-free environment, whether this be banning smoking in common areas, on balconies, or altogether from the subdivision. Last year, Consumer Affairs Victoria conducted a public consultation regarding owners corporations.1 It released both an issues paper and an options paper2 which touched on smoking. It noted that despite smoke drift being a commonly raised issue, the model rules do not currently provide a default position on this matter.3
Arnold Bloch Leibler made submissions in response to both papers4 arguing that it is not only appropriate, but necessary, for there to be model rules regulating smoking in subdivisions.
Smoking requires regulation
The regulation of smoking in all areas of life is increasing.5 The explanatory memorandum and second reading speech for the Tobacco Amendment Bill 2014, which amended the Tobacco Act 1987 to prohibit smoking in specified outdoor areas stated that the new smoking bans were intended to “further limit exposure to second-hand smoke” and “denormalise smoking”.
A NSW discussion paper released in 20126 recognised that in a strata scheme7 individual freedoms must be balanced with the common good. Smoking is an example where a personal right to smoke in your own home conflicts with the rights of others not to suffer the health risks associated with second-hand smoke.
Australia is a party to the World Health Organisation Framework Convention on Tobacco Control (the Convention).8 Article 8 of the Convention requires recognition that scientific evidence has unequivocally established that exposure to tobacco smoke causes death, disease and disability. The guidelines to implementation of Article 8 state that the duty to protect from tobacco smoke is grounded in fundamental human rights and freedoms. Therefore, while recognising that it is legal to smoke in Australia, it is appropriate, and consistent with community expectations and treaty obligations, to regulate smoking in apartment buildings.
Regulation in Victoria
The current regulation in Victoria is inadequate. People living in subdivisions share common property with their neighbours which is managed by an owners corporation (formerly known as a body corporate). Under s138 of the Owners Corporation Act 2006 (the Act), the owners corporation has the power to create rules in relation to the control, management, use or enjoyment of common property and lots.
As a default, s139 of the Act provides that the model rules, set out in Schedule 2 of the Owners Corporations Regulations 2007, apply to an owners corporation. In relation to the health and safety of others, the model rules state (at Rule 1.1) that:
“A lot owner or occupier must not use the lot, or permit it to be used, so as to cause a hazard to the health, safety and security of an owner, occupier, or user of another lot”.
This is currently the only recourse lot owners or occupiers have in the default rules if they have concerns about a neighbour’s smoking.
In 2014, in Sheath v Whitley the New South Wales Civil and Administrative Tribunal (NSWCAT) found that the risk of exacerbation of respiratory symptoms caused by the inhalation of second-hand smoke is a hazard within the meaning of s117(1)(a) of the Strata Schemes Management Act 1996 (NSW).9 Therefore, smoking may constitute a hazard and as such the affected lot owner or occupier can take action under the current model rules to prevent the smoker from continuing to pollute the relevant lot.
However, the facts of that decision involved pre-existing respiratory issues which were exacerbated by the smoking. Therefore, it is not clear, even following this decision, whether smoking would qualify as a hazard in general. For the sake of certainty, it is preferable to have specific rules regulating smoking rather than relying on the general rules regulating hazards.
Under s138 of the Act, an owners corporation may make new rules or amend the model rules. Under ss138 and 140, a rule made by an owners corporation is only of effect if it is:
- within power
- not inconsistent with or does not limit a right or avoid an obligation under any other act or regulation
- not unfairly discriminatory.
Under s138 and Schedule 1 of the Act, the owners corporation has the power to make rules for, among other things, the “health, safety and security of lot owners, occupiers of lots and invitees”. A complete prohibition of smoking would possibly be in excess of the statutory purpose of the Act.10 However, there is a strong argument that the power to protect the health of lot owners necessarily includes the prohibition of certain harmful activities.11 Therefore, it appears that a rule prohibiting smoking would be within the powers of an owners corporation.
It is conceivable that as banning smoking within a lot restricts a person’s use of the property, it may decrease the value of owning the property. However, in NSW it has been found that a rule prohibiting smoking within a lot or the common property did not prohibit or restrict the devolution of a lot or a transfer, lease, mortgage or other dealing therewith.12
The wording of the legislation in s140(a) of the Act requires that a rule by the owners corporation must not unfairly discriminate against a lot owner or occupier. The word “unfairly” limits an otherwise broad requirement. A rule by the owners corporation may be discriminatory, in the sense that it has an adverse effect on only one lot owner, but still be valid as it is not unfairly discriminatory.13 As long as the rule applies equally to all lot owners and occupiers, and there is no targeted application, it is unlikely to be found to be unfairly discriminatory.14 Therefore, a rule which bans smoking, which clearly has a greater adverse impact on smokers, would not be prevented by this requirement.
Making rules banning smoking
Currently, the power of an owners corporation to make rules that ban smoking within an apartment complex is not explicit. There is a strong argument that rules can be made prohibiting smoking in common areas. Such regulation already exists for many public and shared places. However, the situation is less clear in relation to regulating smoking on private property.
It is arguable that, given the discussion above, a rule regulating smoking within an apartment complex could be made under the current legislation. However, the Act and the model rules do not put this matter beyond doubt and there have been no reported cases discussing this issue in Victoria. Given the controversial nature of limiting a person’s rights within their own property, it is necessary for the legislation to give unambiguous support in order for owners corporations to feel comfortable to make such rules.
Need for reform
The gaps in the current legal framework are inconsistent with community expectations. There is a need to regulate smoking which is not adequately addressed. In recognition of this fact, as stated above, the Victorian government has recently undertaken a community review regarding owners corporations, including the current model laws relating to the health and safety of others.15
Smoking on private property affects others
The current law exposes people living in subdivisions to an unacceptable risk of second-hand smoke in their own homes with little recourse against the smokers. Smoke drift from balconies and other private outdoor areas means that it is insufficient to simply ban smoking in common areas.
Additionally, poor ventilation and/or shared air conditioning in many apartment buildings means that even if someone does not smoke in an outdoor area, the smoke may still be present in other people’s homes. In order to be able to fully protect people’s right to have smoke-free air in their own homes, it is necessary to be able to regulate smoking within private property, both indoors and outdoors.
Liability of landlord
The current law also potentially exposes landlords to liability to a tenant who has been adversely affected by a neighbour’s smoking. This is undesirable in circumstances where a landlord currently can do little to address the issue.
In 2015, NSWCAT found that a landlord had breached s52(1) of the Residential Tenancies Act 2010 (NSW) due to a neighbour’s smoking.16 It was found that the smoke, emanating from a chain smoker in the apartment below, had made the apartment not fit for habitation. The decision stated that “t is unacceptable for a tenant and a child to live in an environment which smells of tobacco smoke, and particularly where the smoke is so strong it is causing the tenant and her child to feel unwell”.17 NSWCAT noted that although the problem was not the landlord’s fault, he still had responsibility to undertake the necessary steps to ensure that he could meet his obligations under the Residential Tenancies Act 2010 (NSW).
In Victoria, the comparable legislation, s65(1) of the Residential Tenancies Act 1997 (Vic), only requires that the landlord ensure that the premises are in a reasonably clean condition. Therefore, it is not clear if the smoke would be a breach in Victoria. However, smoke pollution in the air and the entrenched odour of smoke in upholstery and carpet could conceivably result in a finding that the premises were not in a reasonably clean condition. The real possibility of liability supports the proposition that greater regulation of smoking in apartment complexes is required.
Ideas for reform
There is greater regulation of smoking in strata schemes in NSW. The NSW legislature has explicitly recognised that “the penetration of smoke from smoking into a lot or common property may cause a nuisance or hazard and may interfere unreasonably with the use or enjoyment of the common property or another lot”.18
In the Strata Title Law Reform paper19 it was recognised that incorporating model by-laws regarding smoking would assist everyone to know their rights and responsibilities.
Read more: Smoke Free Strata in NSW
Changing the model rules
Victoria should explicitly recognise that smoking is a nuisance and a hazard. Recognising that smoking is legal and people do choose to smoke, there should be options within the model rules. The default rule should be that smoking is banned within common property and is otherwise banned to ensure that smoke does not permeate the common property or another owner’s lot. There should be explicit options to either lighten or tighten this prohibition as the owners corporation deems appropriate.
Having model rules specific to smoking will mean that owners corporations will need to make a conscious choice to allow smoking throughout the property. It does not mean that every owners corporation will ban smoking, however the default position will be more closely aligned with community expectations. Having different options in the model rules will assist the owners corporations, on the instructions of the lot owners, to make informed choices about the appropriate level of permitted smoking.
The harm that exposure to smoke can cause is widely accepted. The law should protect a person’s right to live in a smoke-free environment in their own home. Currently, the legislation in Victoria does not do this in a clear manner. The time has come for the need to protect a person’s autonomy and choice within their own property to be subordinated to the need to protect an individual’s right to live in a home not polluted by second-hand smoke. Such a change is necessary to reflect community standards and Australia’s broader international and domestic commitment to public health and tobacco control.
- Smoking is a recognised health hazard that is regulated in an increasing number of ways.
- However, there is currently little protection against second-hand smoke for lot owners and occupiers in subdivisions in Victoria.
- Following the NSW example, the Victorian legislature should explicitly recognise that smoke drift is a hazard and should create model rules specific to smoking to ensure that owners corporations make informed choices in line with community expectations.
This article was first published on Law Institute Victoria’s website and is republished here with permission.
References – Smoke drift in apartments
- The issues paper and public submissions made are available from www.consumer.vic.gov.au/resources-and-education/legislation/public-consultations-and-reviews/consumer-property-law-review/issues-paper-2-owners-corporations. The options paper and public submissions made are available from www.consumer.vic.gov.au/resources-and-education/legislation/public-consultations-and-reviews/consumer-property-law-review/options-paper-1-owners-corporations-act-2006.
- Consumer Property Acts Review Issues Paper No. 2: Owners corporations (Consumer Affairs Victoria) and Consumer Property Law Review Options for reform of the Owners Corporations Act 2006(Consumer Affairs Victoria).
- Note 2 above, p32.
- The submissions can be viewed at www.abl.com.au/Insights-News/Insights/Owners-corporations-need-model-rules-for-smokingor see Note 2 above.
- See eg, Tobacco Plain Packaging Act 2011(Cth); Tobacco Amendment Act 2014(Vic).
- Making NSW No. 1 Again: Shaping Future Communities – Strata & Community Title Law Reform Discussion Paper (NSW Fair Trading, 15 September 2012).
- This is the term used for subdivisions in NSW.
- The Convention entered into force for Australia on 27 February 2007: see https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IX-4&chapter=9&lang=en#1.
- Sheath v Whitley NSWCATCD 44 -. The same obligation as s117(1)(a) is imposed by s153(1)(a) of the Strata Schemes Management Act 2015 (NSW) and is similar to the obligation imposed by the model rules set out in Schedule 2 of the Owners Corporations Regulations 2007.
- Owners Corporation PS 501391P v Balcombe VSC 384, at .
- Note 10 above, at , , , .
- Salerno v Proprietors of Strata PlanNo 42724 (1997) 8 BPR 15, 457.
- Owners Corporation PS324753R v Callander (Owners Corporations)  VCAT 2041, at -.
- Owners Corporation PS501391P v Balcombe (Owners Corporations) VCAT 956; Owners Corporation PS324753R v Callander (Owners Corporations)  VCAT 2041; Owners Corporation PS331362S v Rhodes (Owners Corporation)  VCAT 642.
- Note 2 above.
- Bhandari v Laming NSWCATAP 224.
- Note 16 above, at .
- Strata Schemes Management Act 2015 (NSW) s153.
- Published by NSW Fair Trading, November 2013.