LANGUAGE

Sheath v. Whitely

The parties to this dispute were neighbours in adjoining town-houses, both part of a relevant Strata Scheme. The applicants alleged that the respondents regularly and continually sat outside in their courtyard and smoked, and that the exhaled smoke drifted into their courtyard and home. The applicants, who were father and daughter, suffered from bronchitis and asthma (respectively). They alleged that the respondents' conduct was in breach of s117 of the Strata Schemes Management Act 1996 (NSW), which prohibits an occupier of a lot to use or enjoy the lot in such a manner as to cause a nuisance or hazard to the occupier of any other lot.

Senior Member Buckley noted that there is no scientific or medical dispute that the inhalation of second-hand smoke can cause an increased risk of adverse health effects. The Tribunal member found that the risk of exacerbation of respiratory symptoms was a "hazard" within the meaning of s117 of the Strata Schemes Management Act, and ordered that the respondents were not to smoke or allow others to smoke within 4 metres of the boundary of the applicants' dwelling.