Heritage Village Ormiston West [2007] QBCCMCmr 565 (20 September 2007)

Last Updated: 26 September 2007

REFERENCE: 0545-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19720
Name of Scheme:	Heritage Village Ormiston West
Address of Scheme:	88 Freeth Street WEST ORMISTON QLD 4160

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Lorna Johnston, the owner of Lot 34

I hereby order that the application for an order by Lorna Johnston, the owner of Lot 34 against Maxine Abbott and John Abbott, the occupiers of Lot 33 seeking an outcome that they smoke cigarettes inside their Unit, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0545-2007

"Heritage Village Ormiston West" CTS 19720

Application
This application is by Lorna Johnston, the owner of Lot 34 (applicant) against Maxine Abbott (nee Dalton) and John Abbott, the occupiers of Lot 33 (respondents) seeking an outcome that they smoke cigarettes inside their Unit.

The applicant’s main submissions were to the effect that:

• Both the respondents are heavy smokers and it goes on all day and late into the night.

• They insist on smoking outside because they don’t want the smoke in their unit.

• Her throat gets sore and her lungs agitated. She is allergic to bush fire smoke, fumes of cars and perfumed candles.

• Her unit is completely shut up because of the cold and the smoke still penetrates.

• She is concerned about what she will do when the warmer weather comes.

Jurisdiction
"Heritage Village Ormiston West" is a community titles scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of the Act or the community management statement; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement (s276(1), Act). An order may require a person to act, or prohibit a person from acting, in a way stated in the order (s276(2), Act).

Procedural matters
On 9 July 2007, a copy of the application was provided to the respondents, and to Midwood Body Corporate Solutions (the body corporate manager) for distribution to the owner of each lot (excluding the applicant and the respondents), with an invitation to respond to the matters raised in the application (s243, Act). Submissions were made by the respondents and by a number of lot owners.

A dispute resolution recommendation has been made under section 248 of the Act referring the dispute to departmental adjudication.

Submissions
The respondents

• Ms Abbott moved into Lot 33 on 13 February 2007.

• Since this time, she has spent 3 months in the United Kingdom.

• They are not heavy smokers and are always considerate and careful as to where they smoke. They smoke over 18 feet from the applicant’s fence.

• They smoke outside for obvious reasons.

Lot owners and occupiers
The owner of Lot 11 opposes the application stating that on one occasion while the respondents were away and she was walking past the applicant’s Lot, she noticed a very strong smell of cigarette smoke coming from another unit which would have blown into the applicant’s unit.

The owner of Lot 29 stated that the applicant should not be subjected to the respondent’s smoke infiltrating her unit and affecting her lifestyle.

The owner of Lot 30 (opposite Lot 33) state that their Lot is close to Lot 33. They submit that they are non-smokers and have never smelt or been affected by the alleged cigarette smoke. They say that Ms Abbott smokes 5 cigarettes a day and the complaint is an affront to individuals’ rights in their own home.

The owner of Lot 31 (non-smokers) opposes the application stating that the respondents should be able to enjoy a cigarette within their property and that they have never been offended by the alleged smoke. They say that the applicant has not provided any medical evidence or documentation as proof that the respondents are responsible for her breathing problems.

The owner of Lot 32 (beside Lot 33) submitted that she has never noticed if or when the respondents are smoking.

The owner of Lot 33 stated that the occupiers of his Lot (the respondents) have been courteous to the applicant; that they are breaking no laws; and that the applicant should respect their right to smoke.

The occupier of Lot 36 (smoker) opposes the application.

The owner of Lot 39 (non-smoker) submits that he is the applicant’s closest neighbour and he is approximately 18 metres from where the respondents sit in their back patio. He states that he has not been aware of any smoke in or around his unit even though his neighbour is a smoker and uses her back patio.

The owner of Lot 43 opposed the application stating that the applicant is attempting to impose her will on the respondents using section 167 of the Act which he believes was never intended to cover smoking.

Determination
Section 167 of the Act relates to nuisance and states:

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--

(a) causes a nuisance or hazard; or

(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

Cigarette smoking, whilst it has been the subject of legislative control in public venues and the like, is not illegal. The law does not prevent a person occupying a lot in a community titles scheme from smoking on scheme land.

However in a community titles context, the occupier of a lot cannot cause a nuisance or hazard or interfere unreasonably with the use or enjoyment of another lot. The applicant claims this is the case, particularly given her allergy. The applicant (as with the occupier of any lot) is entitled to enjoyment of their property. While many of the submissions claim that an order regulating or preventing smoking on a person’s property would be contrary to that person’s rights, it is conceivable that circumstances may exist where an occupier’s smoking could lead to a breach of section 167 of the Act.

The onus is on the person making the allegation to demonstrate that a nuisance or hazard has been caused or that there has been unreasonable interference. The applicant seems to contend that her throat gets sore and her lungs agitated when the respondents smoke cigarettes outdoors. The applicant has not provided any material demonstrating for example, that she is suffering to the extent claimed and that the cigarette smoking by the respondents is a cause of the problem. The applicant also states that she has to close the unit up to combat the smoke. The fact that the applicant may choose to close doors and windows is not a basis for making the order sought, particularly when it is evident from submissions that the respondents are considerate of their neighbours when smoking outdoors. It is not enough to dislike the smell of cigarette smoke to warrant an order. It is relevant that there has been support for the respondents from the persons (including the occupier of Lot 32) who live in close proximity to their and the applicants lot. It is also apparent that there are a number of persons who smoke in lots in the vicinity of the applicant’s Lot.

The applicant and the respondents are entitled to peaceful enjoyment of their respective properties. The outcome sought by the applicant is a significant imposition on the use and enjoyment of Lot 33 by the respondents. In my view, the grounds relied on by the applicant do not establish that by smoking outdoors, the respondents have breached section 167. For example, the applicant has not shown how she has been detrimentally affected by the respondents’ smoking and not by other elements, be it persons smoking on other lots or common property, car fumes or bush smoke. In the circumstances, the applicant has not clearly demonstrated that the respondents have breached section 167 to warrant consideration as to whether an order may be made to compel the respondents to do what the applicant proposes.

For these reasons, the application is dismissed.