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.

Sheath v. Whitely [2014] NSWCATCD 44

  • Australia
  • Apr 8, 2014
  • Civil and Administrative Tribunal, New South Wales
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Parties

Plaintiff

  • Bill Sheath
  • Rhonda Sheath

Defendant

  • Rick Whitely
  • Sandra Whitely

Legislation Cited

Consumer Trader and Tenancy Tribunal Regulation 2009 (NSW)

Evidence Act 1995 (NSW)

Smoke-free Environment Act 2000 (NSW)

Strata Schemes Management Act 1996 (NSW)

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"The inhalation of second-hand smoke is a hazard. It is adjudged as such by public health legislation. It is particularly so with regard to those, like the applicant and his daughter who suffer with respiratory complaints. In their submissions lodged with the Tribunal on the 9 September 2013, the applicants enclosed a plan of the strata plan with an area in the courtyard of lot 8 designated as what they say would be the required area of prohibition. In my view, the respondents are in breach of the terms of s 117. That breach goes not only to personal smoking, but allowing others, invitees to the property, to smoke in the courtyard area. Adopting the standard submitted by the applicants, which I view as apposite, I make an order that the respondent is not to smoke or allow others to smoke who are invitees or other occupants of lot 8, in an area of a dimension four metres from the boundary with lot 7 along the south west facing wall of the dwelling of lot 8, to a 90 degree line from that point to the rear boundary fence and including the irregular line which then runs to the boundary of lot 7. The prohibition does not therefore extend to the approximate six metre long by 1 -1.5 metre wide area of the courtyard of lot 8 furthest from lot 7."