Sun Crest [2009] QBCCMCmr 303 (18 August 2009)

Last Updated: 28 September 2009

REFERENCE: 0444-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	1272
Name of Scheme:	Sun Crest
Address of Scheme:	12 Girralong Street WOREE QLD 4868

TAKE NOTICE that pursuant to an application made under the abovementioned Act by
John Hogan, the Owner of Lots 1 and 5

I hereby order that with respect to smoking cigarettes on Lot 2 or common property of Sun Crest community titles scheme 1272, Cleis Norbury, the owner of Lot 2 must give consideration to the effect resulting tobacco smoke has on John Hogan, the owner and occupier of Lot 5 and take reasonable steps to ensure smoking cigarettes on Lot 2 or common property does not cause a nuisance to Mr Hogan or interfere unreasonably with Mr Hogan’s use or enjoyment of Lot 5 in breach of section 167 of the Body Corporate and Community Management Act 1997.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0444-2009

“Sun Crest” CTS 1272

The scheme
“Sun Crest” community titles scheme 1272 is subject to the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module).

Application
This application made on 12 May 2009 is by John Hogan, the owner of Lots 1 and 5 (Applicant) seeking an outcome that Cleis Norbury, the owner of Lot 2 (Respondent) comply with section 167 of the Act which provides:

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.

The Applicant claims a previous occupier of a unit was forced to move due to the effect of smoke as she suffered macula degeneration, and he wants to avoid a similar fate with future occupiers. He states he has requested the Respondent and her guests smoke in areas where the smoke does not penetrate his units as he is highly sensitive to cigarette smoke and suffers serious sinusitis. The Applicant submits he provided a place for them to smoke, but they refused to use it. He says he has been neighbours with the Respondent for over 10 years and the Respondent has been respectful of his intolerance to cigarette smoke. However, in recent years the Respondent and her partner have shown no respect or consideration for others—he has refused to smoke in a place which ensures the Applicant and others is not subject to the hazard caused by his habit.

Submissions to the Commissioner
On 15 May 2009, the Commissioner provided a copy of the application to the Respondent and to The Community Managers (Body Corporate Manager) for distribution to the owner of each lot (excluding the Applicant and the Respondent), with an invitation to respond to the matters raised in the application (s 243, Act).

The Respondent did not make a submission to the Commissioner. The owner of Lot 3 supports the application. The owner of Lot 4 opposes the application stating owners should be able to do what they want in their unit.

Adjudication
On 19 June 2009, a dispute resolution recommendation was made under section 248 of the Act referring the dispute to departmental adjudication.

Jurisdiction
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 exercise of rights or powers, or the performance of duties, under the Act (s 276(1), Act). An order may require a person to act, or prohibit a person from acting, in a way stated in the order (s 276(2), Act).

Investigation
In accordance with the investigative powers of an adjudicator stated in section 271 of the Act:

• Further submissions were sought from the Applicant about the issues raised in the application. On 22 June 2009, the Applicant stated the Respondent is smoking on a balcony area below his bedroom window and that he will provide a medical certificate and other additional material he thought had been carried across from an earlier conciliation application. The Applicant provided a copy of a statement dated 8 September 2008 by Dr Derrick Coetzee from Southcare Medical Centre regarding Mr John Hogan: “This is to certify that Mr John Hogan suffers from severe allergies from cigarette smoking. It causes severe and chronic sinusitis and he needs frequent medical attention after exposure to smoking from his neighbours.” The Applicant also provided photographs of the scheme noting the proximity of his lots to where the Respondent smokes.
• Submissions were sought from the Respondent. On 23 July 2009, Cairns Community Legal Centre Inc, submitted on behalf of the Respondent that the Applicant has not demonstrated any nuisance or hazard; there is no evidence that any smoke from the Respondent’s balcony always drifts within his unit or balcony space; and it is understood that other unit owners smoke on their balconies which is legal. It is stated the Respondent smokes at her carport rather than her balcony to try to appease and satisfy the Applicant’s concerns.
• The Applicant was invited to respond to the submissions made on behalf of the Respondent. In his response, the Applicant refers to the abovementioned statement by Dr Coetzee, and states the Respondent and her partner only used the carport for a limited time and she occasionally walks down the driveway to have a cigarette. The Applicant submits he is not aware of anyone else smoking on their balcony. He asks that the Respondent and her partner smoke where their cigarette smoke does not penetrate his living space.

Decision
While cigarette smoking is subject to legislative control, is not illegal.

The Tobacco and Other Smoking Products Act 1998 (TOSP Act) is Queensland legislation which in part prohibits smoking in certain places and for other purposes. Section 26R(1) of the TOSP Act prohibits smoking in an enclosed space. ‘Enclosed’ partly means “a place...having a ceiling or roof and, except for doors and passageways, completely or substantially enclosed, whether permanently or temporarily” (schedule dictionary, TOSP Act). Section 26R(1) does not apply to residential accommodation comprising lots in a community titles scheme other than “an area accessible to all, or a specified class of, residents of, or persons employed at, the accommodation. Example— a TV room or cooking facilities shared by all, or a specified class of, residents”: (s 26R(2) and (4)). Section 26ZJ(1) provides: “A person must not smoke within 4m of any part of an entrance to an enclosed place, unless the person has a reasonable excuse.” This provision does not apply to an entrance that is an entrance to residential accommodation comprising lots in a community titles scheme (s26ZJ(2) and (6)).

There is nothing to suggest the circumstances cause a breach of the TOSP Act. The Applicant has not argued, and I am not aware of, any other law or regulation specifically prohibiting smoking in a lot in a community titles scheme. The Applicant is arguing nuisance, an issue which has been considered by adjudicators in previous dispute resolution applications.

In North Shore Apartments [2003] QBCCMCmr 505 (13 May 2003) the adjudicator stated: “What is being sought is that the respondent, and her invitees, be ordered to stop smoking on balconies of lot 13. In the circumstances, I consider that this order is beyond the power of an adjudicator to make. The respondent, and her invitees, are undertaking an activity which is legal within the lot, and even the common property for that matter...I conclude that to find that smoking on part of a lot in the circumstances outlined is a contravention of section 167(b) of the Act is too wide an application of that section. I draw the analogy with smoking in most other environments. Whilst smoking has been made illegal in certain situations (eg. restaurants, public transport, work offices), it is not illegal it smoke in one’s private residence; nor is it illegal to smoke on a public footpath or walkway, or other open space. In a suburban setting which is not a community titles scheme, it is not possible for one neighbour to prevent another from smoking within the confines of the residential environment.”

In Bacala Park [2006] QBCCMCmr 415 (31 July 2006), the adjudicator stated: “In connection with such activity, I consider that I have no power to order a person, in the use and enjoyment of their lot, that they must only smoke on certain parts of their lot, and further, before doing so, must close all windows, doors and other openings. I conclude that such an order would unreasonably interfere with the use and enjoyment of a lot by the occupier thereof.”

In Heritage Village Ormiston West [2007] QBCCMCmr 565 (20 September 2007), I stated: “The applicant claims (nuisance) given her allergy...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...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 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.”

It can be concluded from the abovementioned findings that: there is a question as to whether an adjudicator has the power to compel a person to stop smoking on the person’s lot; there may be circumstances where smoking on a lot or common property causes a breach of section 167; and the onus is on the person complaining about a person/s smoking to demonstrate the nuisance or unreasonable interference.

The question is whether in the circumstances of this dispute, the Applicant has established the Respondent is using or permitting the use of Lot 2 or common property in a way contrary to section 167 of the Act.

The Applicant has provided a medical certificate explaining the effect cigarette smoking has on his health. Although the Applicant says no other occupiers smoke, the objective basis for the statement that the cause is “smoking from his neighbours” is unknown. There is nothing to suggest that the Applicant does not have any other exposure to cigarette smoke that may contribute to his health condition.

The Applicant has stated that he and the Respondent have been neighbours for over 10 years and that the problem has arisen in the last few years. He has not indicated what the Respondent did previously which did not cause a nuisance or unreasonable interference. Further, as argued on behalf of the Respondent, there is no evidence that smoking from the Respondent’s balcony always drifts onto the Applicant’s lot. The Applicant has mentioned the effect smoking has had on another person who previously occupied a lot and the effect smoking may have on a future occupier of a lot. Without any substantiation, such statements are irrelevant to the consideration of this application.

However, the Respondent has not denied smoking on the balcony. Given the proximity of Lot 2 to Lot 5, it may be reasonable to conclude that cigarette smoke does drift to Lot 5. Neither has she denied knowledge of the harm cigarette smoke has to the Applicant’s health.

The Respondent has not provided any information to suggest that in the circumstances it would not be reasonable to expect that the Applicant would smell the cigarette smoke whether from her Lot or common property in the ordinary occupation of Lot 5. I am not satisfied from the submissions on her behalf that she has taken reasonable steps to minimise the effects of her smoking on the Applicant’s use and enjoyment of his lot and common property.

Dr Derrick Coetzee has identified a connection between the Applicant’s allergies and cigarette smoking. I do not consider this diagnosis can be ignored or treated lightly. While there is nothing to suggest that the Respondent’s smoking is the sole or primary contributor to the identified allergies, on balance there is a reasonable likelihood that a person or persons smoking on Lot 2 or adjacent common property may cause nuisance or unreasonable interference with the Applicant’s use or enjoyment of his Lot. In the circumstances, it is appropriate to order that, with respect to smoking cigarettes, the Respondent must have regard to the effect resulting tobacco smoke has on the Applicant. The Applicant has also mentioned a friend of the Respondent’s. This person is not named as a respondent. It is not known if this person is a visitor or occupier. There is no basis for making any finding with respect to this person.