Queenslanders living in apartments could be prevented from smoking on their balconies after a "game changing" decision to ban one unit owner from doing so after a complaint from an upstairs neighbour.
A unit owner at the Artique Resort in Surfers Paradise on the Gold Coast complained that their downstairs neighbour, on the eighth floor, was a "chain smoker".
The ninth-floor owner claimed the eighth-floor neighbour spends about five minutes smoking and could do so about every 20 to 40 minutes, labelling the smoke "relentless and unbearable", causing her to be concerned about her health.
In response, the eighth-floor owner disputed she was a chain smoker, saying a packet could last her a week.
She said she could not help where the wind blows, and also gets cigarette smoke, marijuana smoke, BBQ smoke, and strong perfume and cooking smells entering her own apartment.
She also said she has a disability and "going downstairs to smoke is out of the question".
Body corporate watchdog finds for complainant
The Office of the Commissioner for Body Corporate and Community Management's adjudicator ordered that the eighth-floor owner must no longer smoke tobacco products on the balcony.
Furthermore, it was ruled she can only smoke elsewhere within her apartment if she takes reasonable steps to ensure the smoke does not affect any person in another apartment.
The adjudicator made the decision in December last year on the basis that the smoking was causing a hazard to the other owner.
Kristi Kinast, president of the Strata Community Association of Queensland, the peak voice for body corporates, said the decision by the adjudicator was a "game changer".
Ms Kinast said she believed it "absolutely" set a precedent for other apartment dwellers.
"Up until now … the onus has been on complainants to prove that the volume and frequency of smoke is a nuisance, and that is almost impossible to prove," she told ABC Radio Brisbane.
"I think if we look at this in a greater context, in terms of our society, we've seen these changes over the last decade or more where we've seen continued evolving of the restrictions on smokers — can't smoke in airports, restaurants, workplaces — but it hasn't reached, until now, into strata."
Calls for government action
Ms Kinast said apartment dwellers could seek information on the process from the Office of the Commissioner for Body Corporate and Community Management, and people could seek mediation or adjudication on the issue.
"The other thing I'd suggest … is to push the government for some change," Ms Kinast said.
"Here we've seen an adjudicator make a decision that now impacts all of us, some will say positively, but the government has been sitting on this for years — almost a decade.
Decision could apply to vaping
Former commissioner of Queensland's Body Corporate and Community Management, Chris Irons, said the decision meant effectively anybody who can show cigarette smoke drifting from one balcony to theirs could show it is a hazard.
"This I would think potentially also applies to vaping as well," he said.
Mr Irons said smoking has been a really "tense, difficult issue" in strata for years, with little that could be done about it.
