Life for Queensland apartment owners could change with a new landmark ruling seeing owners and-residents banned from smoking on their own balconies. This particular issue has been raised multiple times by residents in community title living within the last 15 years however decision-makers have not been moved to change until now.
This decision was made by the Queensland Body Corporate Commission Tribunal, in relation to a Gold Coast apartment owner smoking cigarettes on a balcony, and the resulting smoke drifting to the neighbouring balcony of the apartment above. The tribunal found that the smoker was breaching the by-laws of their apartment block, as well as the Body Corporate and Community Management Act, with regard to causing a hazard, nuisance and unreasonable interference another person’s use and enjoyment of their property. The tribunal ultimately decided that the owner cannot smoke on the balcony but only within the actual walls of the apartment with closed windows and doors and take reasonable steps to ensure that the smoke does not affect anyone using a neighbouring apartment. Whilst the law requiring owners to prevent escape of ‘nuisance’ from their properties has been around for hundreds of years, its application to cigarette smoke is novel.
While there is no law that bans smoking on your balcony, this decision means that where a body-corporate agreement references smoking on a balcony, any opposition to that condition, will likely be defeated. For the time being, this decision is only about smoking however it has certainly laid the groundwork for the principle to be extended to limit other activities within community title living such as hosting parties, adhering to noise levels (particularly from old rattily air-conditioning units) to name but one. With apartment living becoming increasingly popular in Australian cities, issues like this deserve careful consideration about what is thought to be reasonable behaviour in your own home, and where to draw the line at limiting what others can do within their homes.