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Cigarette smoke can be more of a nuisance for some people than others. In the recent QCAT decision the President of the Tribunal had to consider the effect of smoking on a neighbour. The QCAT decision was an appeal on a question of law from a departmental adjudication. Smoking as a nuisance The complaint was that the smoking amounted to a breach of Section 167 of the Body Corporate and Community Management Act 1997 (“BCCM ACT”) which provides that:

“The occupier of a lot included in a community titles scheme must not use or permit the use of, the lot or the common property in a way that – causes a nuisance or hazard; or interferes unreasonably with the use or enjoyment of another lot included in the Scheme; or interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.”

The Adjudicators decision In the first instance the Adjudicator found there was a reasonable likelihood that persons smoking in the adjacent common property, might cause nuisance, including by unreasonably interfering with the persons use of his lot. The Adjudicator ordered that owners  give consideration to the effects of cigarette smoke and take reasonable steps to ensure that smoking in adjacent common property did not cause a nuisance or to cause unreasonable interference with the use and enjoyment of a Lot. The Adjudicator’s decision followed a number of earlier decisions and took into account the Tobacco and Other Smoking Products Act 1998. Cigarette smoke is just one of a number of different types of nuisance that can arise in a community titles scheme context. Noxious fumes, dust, noise, vibration, sewerage, odours and light are all types of nuisance which can also arise.

It’s a fine line to go down when taking the issue to Court but the recent decision changed the way people live in a unit complex for good.

For more information on anything Body Corporate, please don’t hesitate to contact Cath on (07) 5448 8725.  We are always happy to help.

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