The applicant and respondent were neighbours. The applicant alleged that smoke coming from the respondent's balcony created a nuisance by interfering with his use and enjoyment of his property, in breach of s167 of the Body Corporate and Community Management Act. The applicant's complaint was upheld by an Adjudicator in a lower court, who ordered that the respondent take reasonable steps to ensure that her cigarette smoking did not cause nuisance to the applicant. The respondent appealed from that decision.
The Queensland Civil and Administrative Tribunal upheld the appeal, holding that the Adjudicator had misapplied the legal test. The relevant legal test was objective rather than subjective: the Adjudicator should not have had regard to the applicant's particular sensitivity to cigarette smoke, but rather whether the cigarette smoke would constitute a nuisance to a person of ordinary sensitivity.
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.
"For the reasons already explored, the test under s 167 is objective and is to be measured against the needs and circumstances of a neighbour of ordinary sensitivity; it is not subjective, reflecting Mr Hogan’s particular circumstance of sensitivity. That was, also, the test correctly applied in the earlier decisions to which the learned adjudicator referred. The appeal should, then, be allowed and the order of the adjudicator made on 18 August 2009 set aside. The appeal was commenced under the Commercial and Consumer Tribunal Act 2003 (CCT Act), the legislation applying before the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). Under ss 256 and 271 of QCAT Act, this Tribunal has jurisdiction, but it can only make an order which could have been made under the former CCT 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 applicant and respondent were neighbours. The applicant alleged that smoke coming from the respondent's balcony created a nuisance by interfering with his use and enjoyment of his property, in breach of s167 of the Body Corporate and Community Management Act. The applicant's complaint was upheld by an Adjudicator in a lower court, who ordered that the respondent take reasonable steps to ensure that her cigarette smoking did not cause nuisance to the applicant. The respondent appealed from that decision.
The Queensland Civil and Administrative Tribunal upheld the appeal, holding that the Adjudicator had misapplied the legal test. The relevant legal test was objective rather than subjective: the Adjudicator should not have had regard to the applicant's particular sensitivity to cigarette smoke, but rather whether the cigarette smoke would constitute a nuisance to a person of ordinary sensitivity.