VIC: Move Your Butt - Love Owners Corporation

A council matter?

Since 1 March 2006 the law in Victoria has required enclosed workplaces, restaurants and shopping centres to be smoke-free.¹ The new law was intended to assist Victorians to quit smoking and to promote healthier and more productive workplaces and other areas, protecting workers and the public from second hand tobacco smoke.²

Municipal councils have moved to prohibit smoking within areas they control, widening the ban at local level. For example, the City of Monash passed Local Law No.4 which came into effect on 1 October 2011, meaning smoking is no longer permitted in the following areas:

within 10 metres of the entrance to a building on council land and reserves
on council land as specified in the Local Law schedule
at council run or sponsored events

A number of workplaces are however exempt from these laws. The exempted areas include:

Residential premises not used for carrying on business
A place of business occupied by a sole operator which is not for public use
Outdoor dining and drinking areas ³
A vehicle⁴

Occupants experiencing smoke infiltration may make a complaint with their local council on the basis that the smoke constitutes a ‘nuisance’ within the meaning of the Public Health and Wellbeing Act 2008. Local councils have a duty to remedy as far as reasonably possible all nuisances existing within their municipal district. However, where council investigates a complaint, and ultimately forms the view that the smoke infiltration is not a ‘nuisance’, there is no avenue available to the occupant under that Act to pursue the matter further. Moreover, councils have proven reluctant to act on nuisance complaints regarding smoke infiltration.

Model rules

The question remains: can an owners corporation make special rules prohibiting smoking on common property or within lots?

The existing Model Rules are set out in Schedule 2 of the Owners Corporation Regulations 2007 (Vic). The Model Rules do not specifically address the issue of smoking. The Model Rules contain general rules which may cover the issue of smoking in certain circumstances. For example, Model Rule 1.1 states that a lot owner ‘must not use the lot or permit it to be used, so as to cause a hazard to the health, safety and security of an owner, occupier or user of another lot.’ It may therefore be possible for an occupant or owners corporation to argue that smoke infiltration constitutes a breach of this rule on the basis that it causes a ‘hazard to health’.

There are no reported Victorian court or tribunal decisions regarding whether smoke infiltration is covered by any of the existing Model Rules. The absence of a specific Model Rule regarding smoking therefore creates uncertainty for both occupants and owners corporations seeking to rely on the Model Rules to prevent smoke infiltration.

We note that the Model Rules currently contain specific rules addressing various other common causes of dispute among occupants, such as noise, parking and waste disposal. Given that smoke infiltration has the potential to pose such a serious health risk to occupants, the absence of a specific rule addressing smoking represents a significant gap in the current Model Rules.

Special rules

Pursuant to section 138 of the Owners Corporations Act 2006 (OCA), an owners corporation may make special rules. For special rules to be enforceable they must:

be for or with respect to a matter set out in Schedule 1 of the OCA.⁵ Schedule 1 includes power to make special rules in relation to health, safety and security, use of common property and change of use of lots; and
be for the purpose of the control, management, administration, use or enjoyment of the common property or a lot.⁶

Within common property it seems plain that an owners corporation has the power to make a special rule prohibiting smoking on common property under the health safety & security power and/or the use of common property power. Insofar as those areas are enclosed they would no doubt be regarded as enclosed workplaces within the meaning of the Tobacco Act 1987 prohibition in any event.

Whether or not a special rule can ban smoking within lots is more problematic. Section 138(3) of the OC Act permits an owners corporation to make special rules affecting lots, thus circumscribing otherwise lawful use of a lot, however rule-making power regarding lots is limited.

The Supreme Court’s decision in Owners Corporation PS 501391P v Balcombe⁷ stands for the proposition that there must be a sufficiently direct and substantial connection between an owners corporation’s statutory purpose and a given rule.

It is relevant that Balcombe concerned rules which were made prior to the commencement of the OCA on New Years Eve 2007. On one view – a view adopted by VCAT in the initial decision – rule-making power under the OCA was extended under the OCA. There is now power to make special rules under Schedule 1 of the OCA inter alia in regards to:

1.1 Health, safety and security of lot owners, occupiers of lots and invitees.

7.2 Noise and other nuisance control.

And so perhaps rule-making power now exists whereas it did not hereinbefore exist. But because a rule must be for the purpose of the control, management, administration, use or enjoyment of the common property or of a lot it seems plain that to be valid a rule:

Must be regulatory, not prohibitive (even if the consequence of regulation is prohibition after the owners corporation exercises natural justice);
Insofar as the rule circumscribes behaviours within a lot which would be lawful but for the rule, have some connection to common property.

The health, safety & security power is not expressed to be limited to common property and so may extend to smoking within a lot. That argument is yet to be tested in Victoria. If not, the perverse situation arises by which smoking can be banned from escaping a lot on an interior face plan, but perhaps not where the boundary is the median, because in the latter circumstances common property is not impacted.

New South Wales

A line of authority has developed in New South Wales where by-laws which restrict otherwise lawful use, such as smoking⁸, have been upheld, with the NSW tribunal describing smoke infiltration as a ‘hazard’⁹ and a ‘nuisance’¹⁰.

In Salerno v Proprietors of Strata Plan No. 42724¹¹ the purchasers bought two lots in a commercial strata scheme, intending to lease the lots to a club involving a smoking environment. Soon after settling the purchase the scheme resolved to make an additional by-law banning smoking and the permission of smoking within common property and lots. The purchasers applied to the New South Wales Supreme Court for an order that the by-law was invalid, alleging that the by-law prevented them from leasing their lot for uses involving smoking and thus limiting the number of potential lessees. The court held that it was within the scheme’s power to ban smoking by both occupants and visitors.

In Owners Corporation SP 49822 v May & ors¹² the owners corporation lodged 2 applications for determination in which they asserted that cigarette smoke emanating from Lot 75 was a nuisance. The tenants and landlord were names as respondents. It was alleged that the cigarette smoke had been an ongoing issue, creating bad smells and affecting other owners’ health and lifestyle. The adjudicator ordered the tenants and their landlord to take action to prevent smoke odour from their cigarettes entering other lots and common property, noting:

(i) It may be that in the extreme, compliance with the orders will mean that the Tenants cannot smoke in the lot they occupy; but that is a consequence of the nuisance and lack of enjoyment which the smoking creates.

Queensland

On the other hand, the Queensland Civil & Administrative Tribunal (QCAT) recently upheld an appeal from a departmental adjudication that smoking within a lot occupied by a Ms Norbury or the adjacent area of common property caused a nuisance to her neighbour, Mr Hogan.¹³ Mr Hogan alleged that Ms Norbury’s cigarette smoke drifted into his lot causing him significant nuisance which was exacerbated by his medical sensitivity to tobacco smoke.

The adjudicator placed weight on Mr Hogan’s sensitivity, applying a subjective test to whether the smoke caused a nuisance or hazard or unreasonably interfered with his use and enjoyment of the lot or common property. On appeal, QCAT found that the adjudicator erred in having regard to Mr Hogan’s sensitivity. Rather, the test for nuisance under the Queensland legislation was an objective test and whilst it was appropriate to take into account the character and quantity of smoke it was inappropriate to have regard to Mr Hogan’s particular sensitivity.