Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

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1 [Home] [Databases] [WorldLII] [Search] [Feedback] Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders You are here: AustLII >> Databases >> Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders >> 2011 >> [2011] QBCCMCmr 264 [Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Context] [No Context] [Help] Admiralty Towers [2011] QBCCMCmr 264 (23 June 2011) Last Updated: 7 October 2011 ADJUDICATOR S ORDER Office of the Commissioner for Body Corporate and Community Management CITATION: Admiralty Towers [2011] QBCCMCmr 264 PARTIES: Jeffrey Karykowski, Occupier of Lot 48 (applicant) Andree McDonald and Christine Weller, Owner and Occupier of Lot 49 (respondents) SCHEME: Admiralty Towers CTS JURISDICTION: APPLICATION NO: DECISION DATE: 23 June 2011 DECISION OF: CATCHWORDS: Body Corporate and Community Management Act 1997 (Qld), (Act), ss 227(1)(a), 229(3)(a) Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module) I Rosemann, Adjudicator NUISANCE test for nuisance - whether cigarette smoke from an adjacent lot has unreasonably interfered with the applicant s use and enjoyment of his lot. Act, ss 167 ORDERS MADE: I hereby order that the application for an order that: We are trying to achieve our right to peacefully enjoy and use our unit free of toxic second hand 1/11

2 cigarette smoke as supported by section 167 of the Body corporate and Community Management Act Despite conciliation agreement that she would lessen the frequency of smoking particularly in the morning on her balcony, the occupiers have intentionally ignored this. is dismissed. The above order has been appealed in the Queensland Civil and Administrative Tribunal Appeal No. APL REASONS FOR DECISION Introduction [1] This application relates to smoking on a lot and whether it creates a nuisance. The applicant is an occupier who asserts that the occupier in the adjacent lot smokes on her balcony and that the smoke drifts into his lot. The applicant asserts that the frequency and volume of smoke is such that it interferes with his peaceful enjoyment and use of his lot. He says he should be able to enjoy his home free from toxic second-hand smoke. He asserts the respondent s conduct is contrary to the legislation. [2] The issue in this application is whether the occupier of Lot 49 is using her lot in a manner which is causing a nuisance. The applicant bears the onus of proving that the conduct constitutes a nuisance that is interfering unreasonably with his use and enjoyment of his lot. Preliminaries [3] Admiralty Towers community titles scheme (Admiralty Towers) consists of 152 lots and common property. The community management statement (CMS) shows the Standard Module applies to the scheme. The scheme is registered as Building Unit Plan [4] This application was lodged under the Act on 6 December 2010, seeking the following order: We are trying to achieve our right to peacefully enjoy and use our unit free of toxic second hand cigarette smoke as supported by section 167 of the Body corporate and Community Management Act Despite conciliation agreement that she would lessen the frequency of smoking particularly in the morning on her balcony, the occupiers have intentionally ignored this. Jurisdiction [5] I am satisfied that this matter falls within the legislative dispute resolution provisions.[1] [6] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about: a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[2] An order may require a person to act, or prohibit a person from acting, in a way stated in the order. An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[3] Procedural matters [7] Initially the applicant lodged an application for conciliation in March 2010[4]. A conciliated agreement was reached. However it appears this did not resolve the matter. 2/11

3 [8] The Commissioner[5] provided a copy of the application to the Body Corporate and the respondents, with an invitation to the respondents and all owners to respond to the matters raised by the application. Submissions were made on behalf of the respondents, by the Committee Secretary and by one owner. The applicant inspected and responded to the submissions received.[6] [9] A dispute resolution recommendation[7] was made referring the file to department adjudication. [10] I then investigated the dispute[8], which included reviewing the application and submissions and seeking further information from the applicant as detailed below. Matters in dispute [11] The applicant names Andree McDonald and Christine Weller as the respondents to the application. Andree McDonald owns Lot 49, along with Anthony Jones, as trustees for the C Weller Investment Trust. The occupier of the lot is Christine Weller. [12] The applicant asserts that Weller is breaching section 167 of the Act. He says that cigarette smoke emanating from Lot 49 drifts into his entire apartment, particularly the main bedroom, due to the prevailing wind. He argues passive smoking is dangerous and he should not be subjected to toxic smoke in his own home. He claims Weller should show more respect to others and restrict her habit if it negatively affects others. [13] The applicant previously wrote to the Body Corporate requesting that it cease to permit the occupier of Lot 49 from using her lot in a manner which causes a nuisance and hazard. The Body Corporate responded that it had the power to make and enforce its own by-laws but not a general power to enforce the Act. It did not consider that it had the power to ban smoking within lots, including balconies. However it said it had contacted the occupier of Lot 49 and asked them to give consideration to their neighbours concerns. [14] The application includes a register of smoke drifting into Lot 48. It lists the time, day and date of occurrences. For some it lists the effect, for example that it disturbed a meal or sleep. Submissions [15] A submission was made on behalf of the trust that owns Lot 49. It noted that occupant of Lot 49 did not reside in the unit permanently. As such, it sought that communication with the occupant be through the trustee. It further said that: a. There is no law or by-law that prevents an occupier of a lot or their guest from smoking. b. The trustees must respect the rights of the occupier to live in Lot 49 in circumstances where smoking is not prohibited. c. A number of the occupiers of lots surrounding Lot 48 also smoke. d. The applicant s partner also smokes. e. The applicant has engaged in conduct, including using a mirror to look into Lot 49 and leaving material under the door of Lot 49, that has made the occupier feel uncomfortable and threatened. This conduct borders on harassment. [16] The Committee Secretary comments that: 3/11

4 a. No by-law specifically relates to smoking although the intent is that residents respect the peace and enjoyment of others. b. The on-site caretaker has spoken to the parties and encouraged them to respect the intent of the legislation and the by-laws. c. Other residents on this level have not complained about excessive cigarette smoke. d. The Owner of Lot 48 has submitted motions to a general meeting relating to smoking. Notwithstanding this, the Committee has not identified any omissions regarding smoking that required by-law changes. [17] The submission from a lot owner says all owners have a right to live in an environment that is free from second-hand smoke, excessive noise and so on. If a resident s smoking impairs the quality of life of others, they should confine it to the inside of the lot where it is undetectable by others. The submitter also suggests that a totally smoke-free building would be the ideal. [18] The applicant s reply to submissions includes that: Investigations a. The trustee s submission fails to provide authority for the occupier s rights. b. He disputes that the lot is not occupied permanently and says it is occupied full time for periods of up to two months or more and only occasionally unoccupied. c. He has witnessed the occupiers leaning around the corner of the balcony and looking in to his living areas. d. His partner is a smoker but always smokes on the corner balcony and closes all of the doors of their lot to prevent second-hand smoke from penetrating living areas. e. His partner is a social smoker who smokes once or twice a week or at a party. However the occupier of Lot 49 smokes continuously throughout the day. f. The resident manager has the authority to prohibit or restrict an occupier s activity causing distress and disturbance to other occupiers. g. He has felt continually harassed by the habitual smoking. [19] Having reviewed the application I wrote to the applicant (with copies to the respondent) outlining the law as I understood it regarding the evidentiary test to be applied in regard to section 167 of the Act. I outlined relevant case law in this regard. I indicated that the onus rested with the applicant to present objective evidence to demonstrate that any smoke emanating from Lot 49 was of such volume and frequency that it would interfere unreasonably with the life of another occupier of ordinary sensitivity. [20] I noted the applicant s log indicating the frequency of smoke infiltration to the lot. However I expressed a view that the application did not quantify the volume of smoke entering the lot or the interference with the use of the lot. I invited the applicant to provide further evidence on those matters. I noted that the applicant may wish to consider engaging an appropriately qualified person to provide an independent report, for example to assess or monitor air quality in Lot 48. I also invited the applicant to present any evidence that the smoke infiltrating Lot 48 always originated from Lot 49 rather than from other neighbouring apartments. 4/11

5 [21] In response the applicant: a. Twice requested an indefinite extension to the time to provide further evidence because Weller had moved out and evidence could not be obtained until she returned. b. Said he knew the smoke always originates from Lot 49 because he has seen the occupant smoking when the smoke was entering his bedroom and on one occasion he witnessed her doing so. In addition, the smoke only enters his lot when Weller is in residence, as evidenced by her balcony doors and curtains being open. He says there is no interference from smoke from other apartments when Weller is not in residence. c. Said he has a right to live in a smoke free home and wants this basic right upheld. [22] I declined an indefinite extension. The onus is on an applicant to provide evidence in support of their application at the time an application was made. Putting a matter on hold indefinitely would not satisfy my obligation to act as quickly[9] in the determination of the application. However I provided the applicant with a one month extension and invited him to request a further defined extension for a specific reason if required. [23] The applicant then requested that I be more specific in the evidence that I required, noting that he was finding it difficult to find a device that reflects the volume of smoke. I responded that I did not consider that it would be appropriate for me to advise the applicant on how he should go about obtaining evidence that would satisfy the evidentiary test for section 167 of the Act. [24] The applicant then requested an extension of 12 months to enable further investigation to establish an appropriate measure of the volume of smoke. He asserted that no such freely available proven measure exists to measure the volume of smoke. [25] I declined to give a 12 month extension, again as it would not satisfy my legislative obligation to deal with the matter quickly, and it was not warranted in this matter. I provided a further month extension noting that it would then be six months since the lodgement of the application and three months since I had first outlined the applicable evidentiary test regarding this application. [26] The applicant has not provided any substantive further evidence in support of his application. He advises that, after undertaking thorough research, he concludes that there is no method available to measure the volume of cigarette smoke. In this regard he provides correspondence from two firms: a. Noel Arnold & Associates (risk management consultants) advises that while indoor air quality monitoring could be undertaken, it does not indicate volume but rather simply detects substances present. b. Airmet (suppliers of equipment for measuring hazardous substances and environmental conditions) says the volume of cigarette smoke can only be measured as it is exhaled because after that it is mixed with the atmosphere and the gas and particulate constituents are diluted. Airmet suggests measuring carbon monoxide, particulates in tobacco smoke, nicotine or whole air samples but indicated problems with each. With carbon monoxide and nicotine the writer comments that with the dilution that I would be surprised if you could detect any change by the time the smoke/odour reached your apartment. and I am not sure what any of these would achieve as the problem is subjective. I can t see how putting figures to it 5/11

6 would help. If you smell cigarette smoke... then you smell cigarette smoke its there. How much it affects/annoys people depends upon the individual. [27] The applicant concludes that the Queensland Civil and Administrative Tribunal (QCAT) decision[10] which set the evidentiary test for nuisance is invalid and his application cannot be considered in a fair and proper way. He asks that the matter be referred back to QCAT for a review and clarification of their decision. [28] I note that on several occasions the applicant was informed that it was open to him to withdraw his application and then resubmit it if and when he obtained evidence in support of his claims. The applicant declined to do so. He says it would be unfair and improper for him to withdraw. [29] During the course of the investigation of this matter I was advised that the Body Corporate had considered a motion relevant to this dispute at a general meeting. It appears that at the Annual General Meeting held on 23 March 2011 the Body Corporate passed a special resolution to amend the by-laws to add a new By-law 44(c) as follows: An owner or occupier of a lot shall not smoke in any lot, including on the balcony of any lot, if in doing so it would be likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property. Analysis [30] The issue in dispute is whether the occupier of Lot 49 is using her lot in a manner which constitutes a nuisance. The substantive questions then are what is the test for nuisance and has the applicant has presented sufficient evidence to demonstrate that the respondent s conduct has caused a nuisance. Applicable law [31] By-law 44 contained in the CMS for the scheme recorded on 30 June 2010 provides: 44. Smoke-Free (a) Smoke-Free Building The body corporate may make rules with respect to smoking on common property within the building and an owner or occupier shall not smoke upon the common property after notice to that effect from the committee of the body corporate. (b) Lot 1 The owner or occupier of Lot 1 must: (i) not permit the occupier s patrons or any other person (including any of the occupier or any of the occupier s servants, agents or contractors) to smoke within any part of Lot 1 any time; (ii) not permit the occupier s patrons or any other person (including any of the occupier or any of the occupier s servants, agents or contractors) to smoke on any part of the common property at any time other than in areas designated as smoking areas, if any, by the committee for the body corporate; (iii) ensure that at all times, notices advising that smoking within the lot is prohibited 6/11

7 are prominently displayed in conspicuous places within the lot; and (iv) ensure that at all times, notices indicating where the designated smoking areas is (if any) are prominently displayed For the avoidance of doubt, any areas of the Scheme Land designated as smoking areas must comply with the requirements of any laws, ordinances and requirements of any relevant authority. [32] By-law 44 currently does not prohibit smoking in any lot other than Lot 1. The new By-law 44(c) approved in March 2011 has not, at the time of writing, been recorded. As such it does not apply to the conduct complained of. I will comment later on its affect when a new CMS is recorded that includes that by-law. [33] The Tobacco and Other Smoking Products Act 1998 (TOSP Act) is Queensland legislation which in part prohibits smoking in certain places. Section 26R(1) of the TOSP Act prohibits smoking in an enclosed space, which includes a place...having a ceiling or roof and, except for doors and passageways, completely or substantially enclosed, whether permanently or temporarily [11] However, section 26R(1) does not apply to residential accommodation including lots in a community titles scheme other than an area accessible to all, or a specified class of, residents of, or persons employed at, the accommodation. Example a TV room or cooking facilities shared by all, or a specified class of, residents.[12] There is nothing to suggest the circumstances cause a breach of the TOSP Act. [34] While there is no by-law or law that prohibits smoking in Lot 49, the use of Lot 49 (as with all lots) must comply with section 167 of the Act, as follows: 167. Nuisances The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that (a) causes a nuisance or hazard; or (b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or (c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property. Test for nuisance [35] The application of section 167 of the Act to the issue of second-hand cigarette smoke was determined by the President of QCAT in Norbury v Hogan[13]. The decision arose from an appeal of a previous adjudicator s order[14] in a matter where cigarette smoke from an adjacent lot had permeated the applicant s lot. The adjudicator in that matter noted three previous decisions[15] where adjudicators had declined to restrict an occupier smoking on their lot. However the adjudicator relied on medical evidence of the applicant s particular sensitivity to cigarette smoke in concluding that the smoke unreasonably interfered with his use of his lot. [36] QCAT upheld an appeal of this order. The decision noted that in common law a private nuisance is an unlawful and unreasonable interference with an occupier s use and enjoyment of land or some right over it.[16] President Wilson found that the ordinary and accustomed uses of residential premises will not be considered a nuisance, even if some 7/11

8 inconvenience to a neighbour is caused, and that the test of nuisance is objective one rather than a subjective one. He concluded that section 167 would be breached only if it was established that the cigarette smoke was...of such volume and frequency that it would interfere unreasonably with the life of another lot owner of ordinary sensitivity. [17] [37] QCAT remitted the matter back to the adjudicator to investigate and determine the application based on that test. Having done so, the adjudicator then dismissed the application[18] on the basis that the applicant was unable to provide objective evidence of a breach of section 167. [38] Applying this test to the current case, as I am bound to do, it seems that the applicant bears the onus of presenting objective evidence to demonstrate that the smoke complained of is caused by the respondent; and that the smoke is of such volume and frequency that it would interfere unreasonably with a resident of ordinary sensitivity. Origin of the smoke [39] The applicant asserts that the smoke which enters his lot comes from Weller. The submission made on Weller s behalf notes that Weller does not reside permanently in the lot and that several other occupiers in surrounding lots also smoke. [40] In responding to queries about the source of the smoke, the applicant says he knows that the smoke entering his lot always comes from Lot 49 as he has seen Weller smoking when smoke enters his lot and smoke only enters his lot when Weller is in residence. [41] The applicant has not actually provided any objective evidence that Weller is the sole or even the primary source of the smoke which he experiences. The respondents have not disputed that Weller smokes and it may be that much or even all of the smoke complained of originates from Lot 49. However, given the other evidentiary issues in this application, I do not consider it necessary to investigate this question any further. Unreasonable interference [42] Proceeding on the assumption that the smoke does originate from Lot 49, the next question is whether the smoke is such that it unreasonably interferes with the applicant s use and enjoyment of Lot 48. [43] In Norbury v Hogan, President Wilson commented on the meaning of unreasonable interference, and said[19]: What is considered unreasonable depends on the prevailing circumstances in each case but the nuisance, these decisions show, needs to be an inconvenience that materially interferes with the ordinary notions of a plain and sober person, and not merely the elegant or dainty habits of the complainant: See Walter v Selfe [1851] EngR 335; (1851) 64 ER 849 at 851. The nuisance must result in a substantial degree of interference according to what are considered reasonable standards for the enjoyment of those premises: Oldham v Lawson (No 1) (1976) VR 654. (my emphasis) and In residential areas, the cases show, the principle of give and take, live and let live is customarily applied so that the ordinary and accustomed use of premises will not be considered a nuisance, even if some inconvenience to a neighbour is caused. 8/11

9 [44] Although smoking is not a desirable activity for many in the community today, it is not illegal within one s residence. (Indeed, a lot may be one of the few places in Admiralty Towers that a smoker can smoke.) Rather, smoking is still an ordinary and accustomed use of premises. [45] The mere existence of smoke or the fact that a resident has been affected by smoke is not sufficient to establish unreasonable interference. Conversely, the fact that other residents are not affected by smoke (as is indicated in Secretary s submission) does not necessarily mean that unreasonable levels of smoke do not exist. If even one person has been subjected to an objectively unreasonable interference, section 167 of the Act may be breached. [46] However the key point, as highlighted by QCAT, is that the test of whether smoke is unreasonable is objective. It is not enough for an occupier to demonstrate the existence of smoke that is unreasonable to them they must be able to present objective evidence that the smoke would be cause a substantial interference to the average person. That is why a person alleging a nuisance from cigarette smoke must be able to quantify the volume and frequency of the smoke and the degree of interference. [47] The difficulty in the current case is that the applicant has provided little quantification of any interference that he has suffered from the smoke. His register indicates numerous days over the course of a three month period where he has noticed smoke at various times of the day. On some days he notices smoke once or twice, and on another it was as many as 10 occasions. On a few days he indicates that it has disturbed his work or a meal. But there is little detail of how he has been disturbed or how the awareness of smoke has interfered with his use and enjoyment of the lot. On five occasions he has recorded that his sleep has been disturbed, including being woken up or having to get up to close windows and doors. But this seems to me to be scant basis to sustain an argument of a substantial interference. [48] The applicant makes reference to the widely acknowledged adverse affects of passive smoking, but it is not clear whether this is his sole or primary concern. It is not stated, for example, whether the smell offends the applicant, or whether perhaps the particles or constituents in the smoke cause him some sort of physical irritation such as triggering asthma. [49] The applicant has failed to provide any objective or even subjective evidence that would give any indication of the amount of smoke entering his lot. I appreciate that the applicant has had difficulty finding any means of scientific measurement of the smoke. However he has not even provided any description or subjective quantification of the smoke he is experiencing. [50] It appears that the applicant considers that the test set by QCAT in Norbury v Hogan is unfair. However, he has not provided any alternative interpretation. He has not given any reason why it would be fair to make a finding that Weller has breached section 167 of the Act when he has provided no substantive evidence, aside from his own scant claims, that any smoke emanating from Lot 49 is actually interfering with him to any significant degree. It is unclear how it could be a legitimate interpretation of section 167 of the Act to reach a finding of a breach without any actual evidence of the substance allegedly causing the interference or its effect. Other issues [51] Although it is not relevant to the issues to be determined by this dispute, I will make an observation regarding the new By-law 44(c) which was approved by the Body Corporate in March, albeit that it has not been recorded. I query whether this by-law will have any significant effect. Although I do not make any determination on the point, it is arguable that 9/11

10 By-law 44(c) could not impose any greater obligation on occupiers than section 167 of the Act in regard to smoking. A by-law cannot be inconsistent with a provision of the Act[20]. As such, it is arguable that if the threshold of likely to interfere in By-law 44(c) were to be interpreted in a manner that went beyond the unreasonable interference in section 167, it would be inconsistent with the Act and would be invalid to the extent of the inconsistency. However, the difference that the by-law will make is that offending conduct can be pursued directly by the Body Corporate as a breach of the by-laws, rather than necessitating an application to this Office. [52] Although it has no bearing on my determination, I make a further observation on an apparent inconsistency in the applicant s argument. The respondents have noted that another occupier in Lot 48 also smokes, and the applicant says that is not a problem because the person is a social smoker and they close the doors when he smokes to prevent the smoke entering the lot. This raises the question of why, if he can close the doors to prevent smoke generated by the occupier of Lot 48 from entering Lot 48, the applicant cannot close the doors to prevent smoke from the occupier of Lot 49 entering Lot 48. Moreover, it is unclear why the applicant suggests that it is inconsiderate of the occupier of Lot 49 to allow her smoke to enter another lot when he does not apparently consider the potential that smoke from the occupier Lot 48 may similarly be entering neighbouring lots. Conclusion [53] The applicant has not substantiated his assertions that the smoke that he says he is experiencing originates from the respondent. More fundamentally, he has provided no subjective or objective evidence of the quantity of smoke which he says he is exposed to and only unsubstantiated indications of the frequency. Furthermore, he has not really explained how any smoke is substantially interfering with his use and enjoyment of his lot. Accordingly, there is simply no evidence presented by the applicant upon which I could reach a finding that the occupant of Lot 49 has breached section 167 of the Act. The application is dismissed. [54] The applicant claims that QCAT s Norbury v Hogan decision is invalid and seeks a review of that decision. Obviously it is beyond the authority of an adjudicator to review a decision of QCAT, and the applicant would have no standing to appeal that decision. However it is open to the applicant to appeal this decision to QCAT and to argue his concerns regarding the test for nuisance in that forum. [1] See sections 227, 228, 276 and Schedule 5 of the Act [2] Section 276 of the Act [3] Section 284(1) of the Act [4] Application reference [5] Section 243 of the Act [6] See sections 246 and 244 of the Act respectively [7] Section 248 of the Act [8] The investigative powers of an adjudicator are set out in section 271 of the Act [9] Section 269 of the Act [10] Norbury v Hogan [2010] QCATA 27 [11] Schedule dictionary, TOSP Act [12] Section 26R(2) and (4) of the TOSP Act [13] [2010] QCATA 27 10/11

11 [14] Sun Crest [2009] QBCCMCmr 303 [15] North Shore Apartments [2003] QBCCMCmr 505, Bacala Park [2006] QBCCMCmr 415 and Heritage Village Ormiston West [2007] QBCCMCmr 565 [16] Norbury v Hogan [2010] QCATA 27, para 13 [17] Norbury v Hogan [2010] QCATA 27, paras 17, 26 and 28 [18] Sun Crest [2010] QBCCMCmr 524 [19] At paras 14, 15 and 17 [20] Section 180(1) of the Act AustLII: Copyright Policy Disclaimers Privacy Policy Feedback URL: 11/11