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."
Owners Corporation SP 49822 v. May & Ors [2006] NSWCTTT 739 (6 November 2006)
Australia
Nov 6, 2006
Consumer, Trader and Tenancy Tribunal, Strata and Community Schemes Division
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
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"What then is the “real cause”? In my opinion, the real cause is the smoking by the Tenants. It may be that, as they submit, their smoking is not excessive. The question is whether the result of their smoking leads to excessive odours in the adjoining lots. On the evidence, I am satisfied that it does. Lack of complaint from previous neighbours is really irrelevant to the resolution of the question. What I am to consider is the impact on these neighbours. Again, the conclusion I draw from the evidence, and in particular from the submissions for E A Jackson and the Fletchers is that the smoke odours cause considerable interference with their enjoyment of their lots, and that the odours constitute a nuisance."
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 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."