Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gisks v The Owners – Strata Plan No 6743; The Owners – Strata Plan No 6743 v Gisks [2019] NSWCATCD 44 Hearing dates: 3 May 2019 Date of orders: 28 May 2019 Decision date: 28 May 2019 Jurisdiction: Consumer and Commercial Division Before: D Goldstein, Senior Member Decision: 1. At all times Frances Cameron must not smoke on the balcony or in the bedrooms of lot 7 and must close all exterior doors and the bedroom 1 window, the bedroom 2 window and the bathroom window when smoking in lot 7. Catchwords: STRATA SCHEMES MANAGEMENT ACT - s153 – Smoking as a Hazard and Nuisance Legislation Cited: Civil and Administrative Tribunal Act 2013 Residential Tenancies Act 2010 (NSW) Strata Schemes Management Act 2015 Cases Cited: Adams v New South Wales Land & Housing Corporation [2016] NSWCATAP 31 Bill Sheath and Rhonda Sheath v Rick Whitley and Sandra Whitley [2014] NSWCATCD Category: Principal judgment Parties: Proceedings SC 18/52678: Martin Gisks (Applicant) The Owners – Strata Plan 6743 (First Respondent) Frances Cameron (Second Respondent) Proceedings SC 19/06382: The Owners – Strata Plan No 6743 (Applicant) Martin Gisks (Respondent) Representation: Martin Gisks (self-represented) The Owners – Strata Plan No 6743 (self-represented) File Number(s): SC 18/52678 & SC 19/06382 Publication restriction: Nil REASONS FOR DECISION 1. These proceedings were heard on 3 May 2019. 2. The hearing dealt with Mr Gisk's application and The Owners – Strata Plan 6743's cross application. 3. In these reasons I will refer to Mr Gisk as the 'lot owner' and to The Owners – Strata Plan 6743 as the 'Owners Corporation'. I will refer to the second respondent as Ms Cameron. 4. On 23 January 2019 Ms Cameron was joined to the lot owner's application as the second respondent. 5. On 6 February 2019 the lot owner amended his application in accordance with order 3 made on 23 January 2019. The lot owner is the registered proprietor of Lot 5 in the Strata Scheme. 6. Orders 1 – 4 sought by the lot owner related to the strata scheme's electrical switchboard and work that he had performed to that switchboard without the Owners Corporation's consent. 7. Order 5 related to complaints that he had about smoke escaping from Ms Cameron's lot, among others, which he stated constituted a nuisance. 8. He also made an application for costs. 9. On 6 February 2019 the Owners Corporation filed a cross application which sought orders in relation to the strata scheme's electrical switchboard and work that the lot owner had performed to that switchboard without its consent. 10. At the hearing on 3 May 2019 it was apparent that the parties were in agreement that there should be a by-law to address the fact that the lot owner had carried out work to the strata scheme's electrical switchboard without Owners Corporation's consent, but could not agree upon the wording of the by-law. I assisted the parties to agree upon the wording of the by – law. As a result the following order was made: 'By Consent, in SC 18/52678 and SC 19/06382 Martin Gisks and The Owners - Strata Plan No. 6734 agree that The Special By - Law relating to Lot 5 Additional Electrical Supply as signed by them and by Senior Member Goldstein and placed on the Tribunal File for the purposes of identification will be adopted by The Owners - Strata Plan No. 6734.' 1. The lot owner's complaints regarding smoking remain to be determined by me. 2. At the hearing I admitted a number of documents into evidence including : 1. Exhibit 1, statutory declaration of Clare Levitt; 2. Exhibit 2, statutory declaration of Ms Cameron; 3. Exhibit 3, unsigned letter dated 5 February 2019 from Ms Savva; and 4. Exhibit A, various emails sent by the lot owner to the Owner's Corporation or its managing agent. 1. The lot owner's evidence is made up of a number of emails over the period 2015 to 2017 which establish that he has constantly complained of: 1. Receiving second hand tobacco smoke drift from Lot 7 brought into his living room and kitchen via windows and doors, and depending on wind flow direction, in all of the rooms within his lot; 2. Receiving second hand tobacco smoke from occupants of Lot 11 smoking on their balcony affecting him while on common property and in his garage. 1. The Owner's Corporation's evidence indicates that it does not consider the lot owners smoke penetration complaints to be a matter which concern them. The last paragraph of exhibit 3 which was written by a member of the Executive Committee of the Owner's Corporation states: 'In addition, the Smoke Penetration/Drift complaint raised by Mr Gisks (Lot 5), has been considered, and conclude this is a civil matter as it is affecting one person only, Mr Gisks. No other official complaints have been received in my time as a resident and therefore am of the opinion this is not a BC matter.' 1. In addition in a statutory declaration sworn by a Mr Lukus, he stated as follows: 'As a strata committee member for over 12 years, we have never received a complaint either verbally or written other than from Mr Gisks regarding smoke drift from any other resident. As a strata committee member we had considered Mr Gisk's assertions regarding smoke drift and do not believe it is a body corporate issue.' 1. Mr Lukus's statutory declaration was filed by the Owner's Corporation, but was not formally tendered. Nonetheless I will have regard to it pursuant to s38(2) of the Civil and Administrative Tribunal Act 2013 which states: 'The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice' (Emphasis added) 1. Ms Cameron's evidence which is exhibit 2, states that she is the owner/occupier of lot 7. She states that she only smokes in the lounge room of lot 7 and the majority of the time closes the bedroom door or window when smoking. She states that she does not smoke in the bedrooms which are near the lot owner's balcony or common property. She also states that that there are occasions where the bedroom door or window of her a lot does not get closed as she is of the view that there does not appear to be a permanent resident of Lot 5, which is owned by the lot owner. 2. Ms Levitt's evidence which is exhibit 1 is that she is employed by the Owners Corporation's strata management company. She states that when complaints were received from the lot owner as regards smoke, the Strata Committee was advised and notices were issued to all residents or the person involved was spoken to directly if needed. She states that Mrs Cameron has informed her that that she no longer smokes on the balcony of lot 7 and only smoked inside her unit and that she would close the windows that affect lot 5 when doing so. 3. Mr Gisk's complaints regarding smoking were based on s153 of the Strata Schemes Management Act 2015 which states: '(1) An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not: (a) use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or (b) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or (c) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot. Note. Depending on the circumstances in which it occurs, the penetration of smoke from smoking into a lot or common property may cause a nuisance or hazard and may interfere unreasonably with the use or enjoyment of the common property or another lot. (2) This section does not operate to prevent the due exercise of rights conferred on a developer by the operation of section 82 of the Strata Schemes Development Act 2015' (emphasis added) 1. The text in the Note which I have emphasised contains a broad indication that smoke from one lot into another may cause a nuisance or a hazard, and as such may be a breach of s153. 2. Mr Gisk also relied on a failure to comply with by-laws. However he did not provide the Tribunal with a copy of the by-laws or the particular by-law that he relied on. 3. In Bill Sheath and Rhonda Sheath v Rick Whitley and Sandra Whitley [2014] NSWCATCD Senior Member Buckley found that smoking was a hazard. He stated at [19] – [24]: There is, in my view no medical or scientific dispute that the inhalation of either primary smoke and second-hand smoke can cause an increased risk of adverse health effects. It is an issue of increased risk, not of the certainty of a health hazard becoming a reality. Smoking is not illegal, except as prohibited by various restrictions of smoking in a public area, specifically as referred to in the Smoke-free Environment Act 2000, which outlaws smoking within certain public areas both inside and out. There is no legislation which prevents a home owner smoking in his own backyard, bedroom, lounge room, wherever within the boundaries of the home that he either owns or rents. That is not necessarily the case with a strata scheme by virtue of the provisions of s 117 of the SSMA, which is in terms of a mandatory prohibition - "an owner lessee or occupant must not ...... cause a nuisance or hazard to the occupier of any other lot.." It is not necessary to establish intention. I determine that the risk of exacerbation of respiratory symptoms is a "hazard" within the meaning of s 117(1)(A) of the SSMA The four metre standard which the applicant submits as being appropriate is an indication of the relevant risk, as viewed from a public building perspective of the area in which smoking is to be prohibited. Lot 8 has a courtyard length which varies on its short side, the rear boundary of the dwelling of approximately 9.5 metres to the rear boundary fence which is 10.28 metres in length. The inhalation of second-hand smoke is a hazard. It is adjudged as such by public health legislation. It is particularly so with regard to those, like the applicant and his daughter who suffer with respiratory complaints. In their submissions lodged with the Tribunal on the 9 September 2013, the applicants enclosed a plan of the strata plan with an area in the courtyard of lot 8 designated as what they say would be the required area of prohibition. In my view, the respondents are in breach of the terms of s 117. That breach goes not only to personal smoking, but allowing others, invitees to the property, to smoke in the courtyard area. Adopting the standard submitted by the applicants, which I view as apposite, I make an order that the respondent is not to smoke or allow others to smoke who are invitees or other occupants of lot 8, in an area of a dimension four metres from the boundary with lot 7 along the south west facing wall of the dwelling of lot 8, to a 90 degree line from that point to the rear boundary fence and including the irregular line which then runs to the boundary of lot' 1. S117 of the Strata Schemes Management Act as referred to by Senior Member Buckley was not identical to s153 as relied upon by the lot owner, but it was in substantially the same terms, especially in its reference to "an owner lessee or occupant must not ...... cause a nuisance or hazard to the occupier of any other lot." which is substantially the same as: 'An owner….tenant or occupier of a lot in a strata scheme must not permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot' as stated in s153. 1. In Adams v New South Wales Land & Housing Corporation [2016] NSWCATAP 31 at [64] an Appeal Panel summarized the definition of a private nuisance as follows: 'In summary, the main features of a private nuisance are: (a) an interference, by the defendant (tenant) in his/her use of his/her land (premises), with an occupier's (neighbour's) use and enjoyment of his/her land (premises) – an interference can be physical damage to property or person and non-physical damage (e.g. damage caused by air pollution, vibration, noise and dust). However, the damage must at all times be to the occupier's (neighbour's) use and enjoyment of his/her land (premises); (b) the interference must be substantial and unreasonable; and (c) the test as to whether the interference is substantial and unreasonable is objective.' 1. Adams v New South Wales Land & Housing Corporation was concerned with a decision to terminate a social housing tenancy agreement on grounds of a breach of the agreement, namely whether the tenant had caused or permitted a nuisance. 2. As found in Adams at [60], albeit in context of the Residential Tenancies Act 2010 (NSW), I also find that the reference to nuisance in s153(1)(a) of the Strata Schemes Management Act is a 'reference to conduct of the kind that is likely to give rise to a private nuisance liability' and that the description of a private nuisance as stated in [24] is applicable. 3. I accept the lot owner's evidence and find that second hand tobacco smoke drifts from Lot 7 into his living room and kitchen via windows and doors, and depending on wind flow direction, in all of the rooms within his lot. Ms Cameron admits that she smokes in her lot, lot 7, and that she has not ceased smoking. 4. I find that while the Owner's Corporation's managing agent does the best she can to address the lot owner's complaints regarding smoke drift, the Strata Committee of the Owner's Corporation does not view these complaints seriously. Ms Savva and Mr Lukas state that they don't consider the lot owner's complaints as matters that concerned them. I further find that such an attitude was wrong and that their attitude to s153 of the Strata Schemes Management Act was and is misconceived. 5. I further find that the smoke drift that emanates from lot 7 owned and occupied by Ms Cameron which enters into lot 5, owned and occupied by the lot owner, is a hazard for the same reasons as found by Senior Member Buckley in Bill Sheath and Rhonda Sheath v Rick Whitley and Sandra Whitley as stated in the passages extracted above. The lot owner complains in his email of 16 March 2015 of his health and safety being of primary concern and his health concerns regarding inhalation of cigarette smoke which he describes as a toxic chemical cocktail. I accept that evidence of his concerns regarding tobacco smoke drift. 6. I further find that the smoke drift that emanates from lot 7 owned and occupied by Ms Cameron which enters into lot 5, owned and occupied by the lot owner is a nuisance because it is an interference with the lot owner's use and enjoyment of his lot which is substantial and unreasonable. His evidence in my view establishes that fact. 7. The finding in the previous paragraph is based on my acceptance of the lot owner's evidence and the virtual concession by Ms Cameron that she smokes in lot 7, although she tries to close all windows and doors when she does so. The fact that the lot owner has complained of this issue from 2015 to 2017 leads me to find that his complaints are not trivial or lack a serious element and have not been properly addressed. The fact that the Strata Committee has misconceived the position in connection with s153 of the Strata Schemes Management Act has not assisted the resolution of this issue. 8. I will make the following orders to resolve the lot owner's dispute regarding smoke drift from lot 7 into his lot. 9. Pursuant to s241 of the Strata Schemes Management Act I will make an order that at all times Ms Cameron must not smoke on the balcony or in the bedrooms of lot 7 and must close all exterior doors and the bedroom 1 window, the bedroom 2 window and the bathroom window when smoking in lot 7. 10. So far as the Owner's Corporation is concerned, since the lot owner has not established that a by-law exists dealing with smoke penetration or drift from one lot to another, such as to enliven ss146 and 147 of the Strata Schemes Management Act, I will make no order against it. In that regard I find that the strata committee of the Owner's Corporation is not responsible for enforcing s153, although these reasons should be sufficient for it to completely change its views about smoke drift or penetration being a hazard and/or a nuisance pursuant to s153 of the Strata Schemes Management Act. 11. Finally I can see no basis for making a costs order against either party in these proceedings pursuant to s60 of the Civil and Administrative Tribunal Act 2013. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 July 2019