Tim McClymont No Comments

There is little doubt that the community’s attitude to smoking in public areas and buildings has changed, as has the law in that regard. The driving force behind these changes is no doubt the health and wellbeing of those in the community that don’t smoke, but who may be affected through ‘passive smoking’?

It appears that law makers may seek to now regulate the behaviour of smokers in residential units. In Norbury v Hogan [2010] QCATA 27 the Queensland Civil and Administrative Tribunal had to decide if cigarette smoke drifting into a neighbour’s home unit can constitute a ‘nuisance’ under s. 167 of the Body Corporate and Community Management Act 1997 (BCCM Act). This was an appeal from an adjudication under the BCCM Act. The Tribunal, applying the common law tests of nuisance, considered whether there was an ‘unreasonable interference’ with the other persons use and enjoyment of their property.

Unreasonable interference can include nuisances from dust, noise, vibration and noxious fumes. The Tribunal, when referring to disputes in residential areas generally, said that there is a principle of ‘give and take’ so that ordinary/customary usage will not be considered a nuisance even if it does cause some inconvenience to a neighbour. The Tribunal held that there can be no nuisance simply because of a person of ‘abnormal’ sensitivity is affected.

The test of interference is an ‘objective one’ taking into account all the facts and circumstances. The Tribunal allowed the appeal finding that the BCCM Adjudicator had not applied to proper test placing too much weigh on the evidence of non-smoking unit owner.