The applicants lived above the respondents in an apartment complex. The respondents were heavy smokers. The applicants alleged that smoke from the respondents' unit drifted into their apartment causing them distress, in breach of s167 of the Body Corporate and Community Management Act which prevents an occupier using his or her lot (property) in a way that creates a nuisance or interference with another occupier.
The Adjudicator found that s167 would only be breached if the applicants could establish that the cigarette smoke was of such a volume or frequency that it would interfere unreasonably with the life of another lot owner of "ordinary sensitivity". Because the applicants tendered no evidence of the extent of smoke emanating from the respondents' lot, the Adjudicator dismissed the application.
Note: for a similar case, see Admiralty Towers [2012] QBCCMCmr 264 (23 June 2011).
Carson Place [2012] QBCCMCmr 503 (8 November 2012)
Australia
Nov 8, 2012
Office of the Commissioner for Body Corporate and Community Management
Some jurisdictions allow an individual or organization to initiate an action against another private party who is not following a particular law. For example, a person may sue a restaurant that allows smoking despite a smoke free law. If the plaintiff is claiming the violation of the law caused physical harm, this may also be a personal injury case.
An infringement of a protection contained within a statutory environmental law, including public or private nuisance.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"Based on the information received, I consider the applicants have provided no objective (or even subjective) evidence of the volume or frequency of smoke entering their lot. I appreciate that the applicants may have had difficulty finding a commercially available machine to measure the quantity of smoke. However, the applicants have not even provided a detailed description or any subjective quantification of the smoke they are experiencing.
The applicants have argued that the QCAT test should not be the pre-eminent test when determining whether second-hand cigarette smoke breaches section 167 of the Act. Rather, the applicants have argued that the future of their health is an integral part of the application and that the Cancer Council health advice in relation to passive smoke should not be ignored.
While I appreciate the applicants’ comments regarding the effects of passive smoke, the fact remains that the applicants have provided no evidence of the frequency or volume of smoke entering their lot. Without such information there is no evidence that any smoke emanating from the respondents’ lot is actually interfering with the applicants to any significant degree. In these circumstances, I am not satisfied it would be just and equitable to make an order that the respondents have breached section 167 of the Act."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
The applicants lived above the respondents in an apartment complex. The respondents were heavy smokers. The applicants alleged that smoke from the respondents' unit drifted into their apartment causing them distress, in breach of s167 of the Body Corporate and Community Management Act which prevents an occupier using his or her lot (property) in a way that creates a nuisance or interference with another occupier.
The Adjudicator found that s167 would only be breached if the applicants could establish that the cigarette smoke was of such a volume or frequency that it would interfere unreasonably with the life of another lot owner of "ordinary sensitivity". Because the applicants tendered no evidence of the extent of smoke emanating from the respondents' lot, the Adjudicator dismissed the application.
Note: for a similar case, see Admiralty Towers [2012] QBCCMCmr 264 (23 June 2011).