Where There is Smoke (Drift) There May Now Be Fire!
Where There is Smoke (Drift) There May Now Be Fire!
Welcome to the 1ST edition of Activated for 2022
All at Active Law trust our readers had an enjoyable break over the holiday period.
The end of 2021 saw the Body Corporate law landscape significantly change with the widely reported decision involving smoking at Artique on the Gold Coast.
As readers may be aware, an Adjudicator ordered an occupant of a lot not to smoke tobacco products on her balcony. The balconies at Artique are part of a lot’s title and not common property the subject of an exclusive use grant.
Whilst the Body Corporate was not a party to the Application to the Commissioner (the applicant and the respondent were warring owners), it was the Body Corporate’s “smoking” bylaw that was tested.
Active Law was retained by the Body Corporate to review its bylaws and as part of the review we inserted a “smoke drift” bylaw, as has been our standard practice now for quite some time, whenever retained to review a scheme’s existing bylaws.
The wording of the smoke drift bylaw we inserted was integral to the applicant being successful in having the respondent’s smoking habits regulated.
The bylaw was drafted such that, despite the Adjudicator finding the respondent’s smoking was not causing a “nuisance” (the threshold to establish a nuisance remains high), the Adjudicator was able to find the respondent’s behavior was unreasonably interfering with the lawful use of the applicant’s lot and/or that the respondent’s smoke drift constituted a “hazard” to the applicant.
The Body Corporate chose to include Active’s smoke drift bylaw in its bylaws allowing the respondent’s smoking to be regulated as a result.
We would encourage bodies corporate to review the bylaws applying to their scheme to ensure adequate controls are in place to regulate occupiers’ behavior.
Active Law has the expertise to assist bodies corporate with a bylaw review and would welcome enquiries in this regard.
Warm regards
Mark.
Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not and is not intended to be, legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.
