Australia

The owners of a Strata Corporation alleged that one of the occupiers of the complex was creating a nuisance by causing smoke to penetrate adjoining lots. The respondents were smoking inside their own dwelling but the applicant alleged that the smoke was penetrating adjoining lots through walls and the air-conditioning system, and that this created a nuisance in breach of s117 of the Strata Schemes Management Act.

The Adjudicator found, on the balance of probabilities, that smoke penetration caused a significant problem for the occupiers of adjoining lots and amounted to a nuisance. The Adjudicator further found that the cause of the nuisance was the respondents' smoking, noting that "[i]n the extreme, compliance with the orders will mean that the Tenants cannot smoke in the lot they occupy; but that is the consequence of the nuisance and the lack of enjoyment which the smoking creates."