Pittman v Newport [2022] NSWCATCD 173

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Pittman v Newport [2022] NSWCATCD 173 Hearing dates: 6 July 2022 Date of orders: 11 October 2022 Decision date: 11 October 2022 Jurisdiction: Consumer and Commercial Division Before: P French, Senior Member Decision: (1) The respondent Lot Owners, Desmond Newport and Carmen Traynor, must not smoke tobacco products on the balcony of their Lot (unit 201). (2) The respondent Lot Owners, Desmond Newport and Carmen Traynor, must not cause or permit any other person to smoke tobacco products on the balcony of their Lot (unit 201). (3) The respondent Lot Owners, Desmond Newport and Carmen Traynor, must not cause or permit smoke, fumes or odour of any tobacco product to be emitted from the interior of their Lot (unit 201) into the applicant Lot Owners' Lot (unit 301). Catchwords: LAND LAW – Strata title – nuisance – hazard - tobacco smoke transmission between lots Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) – s 38 Interpretation Act 1987 (NSW) – ss 34, 35 Smoke-free Environment Act 2000 (NSW) – ss 3, 6, 6A, Schedule 1 Strata Schemes Management Act 2015 (NSW) – ss 153, 241 Cases Cited: Artique [221] QBCCMCmr 596 Bhandari v Laming [2015] NSWCATAP 224 Bill Sheath and Rhonda Sheath v Rick Whitely and Sandra Whitely [2014] NSWCATCD 44 Briginshaw v Briginshaw [1938] 60 CLR 336 Chehelnabi v Gourmet and Leisure Holdings Pty Ltd [2020] NSWCATAP 102 Gisks v The Owners – Strata Plan No 6743; The Owners – Strata Plan No 6743 v Gisks [2019] NSWCATCD 44 Mirana Investments Pty Ltd and Ors v Coupe [2012] QCATA 187 Newport v Pittman [2022] NSWCATAP 150 Owners Corporation SP 49822 v May & Ors (Strata & Community Schemes) [2006] NSWCTTT 739 March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 The Owners Strata Plan No 2245 v Veney [2020] NSWSC 134 Texts Cited: Australian Standard AS1170 Structural Design Actions – Part 2 – Wind Action Consultation Draft National Tobacco Strategy 2022 -2030, Commonwealth of Australia, 2022 Grace, C, Greenhalgh, EM and Tumini, V, 15.6 Smoking bans in the home and car, Tobacco in Australia: Facts and Issues, Melbourne, Cancer Council Victoria, 2022 Hwang, J & Lee K, Determination of outdoor tobacco smoke exposure by distance from a smoking source, Oxford Academic, 2014 Intergovernmental Committee on Drugs, National Tobacco Strategy 2012-2018, Commonwealth of Australia, 2012 Physicians for a smoke-free Canada, Smoke-Free Outdoor Public Spaces: A Community Advocacy Toolkit, Ottawa, 2010 World Health Organisation, Framework Convention on Tobacco Control, United Nations Treaty Series Vol. 2302 World Health Organisation, Protection from Exposure to Second-Hand Tobacco Smoke: Policy Recommendations, 2007 Conference of the Parties to the WHO Framework Convention on Tobacco Control, Second Session, Bangkok, 30 June – 6 July 2007: Decisions and Ancillary Documents, Geneva, 2008 Category: Principal judgment Parties: Brenton Mark Pittman (First Applicant) Lynette Robyn Cartwright (Second Applicant) Desmond Newport (First Respondent) Carmen Traynor (Second Respondent) Representation: Oneills Law (First and Second Applicants)