My last article on Qld’s smoking laws certainly generated some feedback and enquiry as people are generally not aware of the extent smoking is regulated through legislation.
Another area of developing legislation around smoking is in the realms of Body Corporates and unit or apartment living.
The current Body Corporate and Community Management Act 1997 under Section 167 captures smoking where it provides:-
“The occupier of a lot included in a community title scheme must not use, or permit the use of, the lot or the common property in any way that (a) causes a nuisance or hazard; or
(b) interferes unreasonably with the use or enjoyment of another lot included in the
(c) interferes unreasonably with the use or enjoyment of the common property”
This provision was considered in the case of Norbury -v- Hogan involving the situation where one lot occupier was smoking in their lot and the smoke generated travelled on to another lot. The Adjudicator held that demonstrating the nuisance or unreasonable interference must be done objectively in order to substantiate a contravention of Section 167. That is it is not relevant if someone is subjectively offended or suffers interference for example through a medical condition, but whether objectively, the person causes nuisance or hazard.
So in unit living smokers and non-smokers must be aware that they need to co-exist.
There are changes to the current legislation being considered which I will touch on in next month’s edition of Talking Law.
Brett Moller – Consultant Lawyer – Vandeleur & Todd Solicitors
3/46 Norman Street, Gordonvale, Qld 4865
Mobile: 0417 609 656