[200William-EC SP67851] SMOKING IN MARQUIS

Tue Apr 20 11:10:18 AEST 2021

Hi Craig,

Thank you for the email. I completely empathise with a strong disliking passive smoke. It does detract from enjoying your balcony etc. I don't know what the practical solution is in apartment living.

I feel that if we put out the letter, it would have no practical effect, and would only alienate and antagonise other residents who might occasionally smoke, or have guests that do.
I feel that Tribunal would kick out a fine of $11,000 imposed by the EC, and we would just spend money on lawyers to no effect.

Therefore for the harmony of the property it is better to restate that smoking in common areas is banned. We could also write, that if you are smoking in your apartment, please be considerate to where the smoke goes, and those apartments around you.

Regards,
Ed

From: ec-bounces at 200william.com <ec-bounces at 200william.com> On Behalf Of Craig Laforest
Sent: Saturday, 17 April 2021 7:41 PM
To: 'Matthew Perkins' <matt at spectrum.com.au>; ec at 200william.com
Subject: Re: [200William-EC SP67851] SMOKING IN MARQUIS

Good evening gentlemen,

Thank you for your responses.

While it's all very well to say let people do what they want in terms of smoking in their own apartments, the law does state that it is not acceptable if it encroaches into another apartment and the occupants find it unhealthy.

We have a by-law in place which states it is not allowed.  Once a by-law is in place the following applies:
Breach of a by-law and penalties
In NSW, residents in breach of any by-law risk that the Owners Corporation makes an application to NCAT<http://www.ncat.nsw.gov.au/> for the imposition of a civil penalty for breaching the by-law. Such penalties are quite severe. This penalty carries a monetary penalty of up to 10 penalty units (which is $1,100). A repeat offender (ie one who was fined $1,100 and breached the by-law again within 12 months of being fined) can be fined $2,200.
Any owner who is in breach of the occupancy limits set out in the legislation are potentially liable to fines of $5,500 and $11,000.
In the event that an owner breaches a NCAT Order to, for example, stop smoke drift, or remove an animal, Section 72 (3) of the Civil and Administrative Tribunal Act 2013<http://www.legislation.nsw.gov.au/#/view/act/2013/2/full> provides for a civil penalty. These penalties have increased to up to $11,000 for an individual and $22,000 for a corporation.

Please note the following also:
New NSW strata laws recognises smoking may cause nuisance or hazard to another person
The new legislation<http://www.legislation.nsw.gov.au/#/view/regulation/2016/501/full> introduced in NSW in November 2016 has recognised that smoking may cause nuisance or hazard to another person. Further, it has introduced a new model by-law<http://www.legislation.nsw.gov.au/#/view/regulation/2016/501/sch3> (which must be adopted) regulating smoke drift.
It offers two options to restrict smoke penetration in by-laws. If neither option A or B is selected, option A will apply.
Option A
(1) An owner or occupier, and any invitee of the owner or occupier, must not smoke tobacco or any other substance on the common property.
(2) An owner or occupier of a lot must ensure that smoke caused by the smoking of tobacco or any other substance by the owner or occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot.
Option B
(1) An owner or occupier of a lot, and any invitee of the owner or occupier, must not smoke tobacco or any other substance on the common property, except: (a) in an area designated as a smoking area by the owners corporation, or (b) with the written approval of the owners corporation.
(2) A person who is permitted under this by-law to smoke tobacco or any other substance on common property must ensure that the smoke does not penetrate to any other lot.
(3) An owner or occupier of a lot must ensure that smoke caused by the smoking of tobacco or any other substance by the owner or occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot.
So, for example, if Option A were adopted, smoking would be permitted within an individual's apartment provided that no smoke escaped into another apartment or into common areas.
Even if the Owners Corporation does not have a by-law which prohibits smoking or smoke penetration, the Owners Corporation could stop a person from smoking under the nuisance/hazard provisions of the legislation if the Owners Corporation could prove such nuisance/hazard being caused.

Again, we have a by-law in place which does not allow any smoke on a lot and in common area.

I have a major issue with a neighbour smoking heavily, not only cigarettes, but marijuana and it encroaches into my apartment. It is a nuisance and a hazard.  Please note Option A (2) above.

I would appreciate your reconsideration of this matter so that a letter can go out to tenants/owners asap.  I look forward to hearing from you.

Thank you.
Craig

From: ec-bounces at 200william.com<mailto:ec-bounces at 200william.com> <ec-bounces at 200william.com<mailto:ec-bounces at 200william.com>> On Behalf Of Matthew Perkins
Sent: Saturday, 17 April 2021 5:16 PM
To: ec at 200william.com<mailto:ec at 200william.com>
Subject: Re: [200William-EC SP67851] SMOKING IN MARQUIS

I tend to agree Ed,

Matt

On 17/4/21 5:03 pm, Edward Sainsbury wrote:
Hi EC,

I would say no to sending around the letter to residents. I do not want to tell people how to live their lives in their own homes.

I would however enforce a no smoking rule in all common areas. A letter to this effect would have my support.

Regards,
Ed

From: Brook Beves <brookbeves at bigpond.com><mailto:brookbeves at bigpond.com>
Sent: Saturday, 17 April 2021 3:37 PM
To: 'Edward Sainsbury' <edwardsainsbury at hotmail.com><mailto:edwardsainsbury at hotmail.com>; 'Craig Laforest' <cscl at optusnet.com.au><mailto:cscl at optusnet.com.au>; ec at 200william.com<mailto:ec at 200william.com>; ec-bounces at 200william.com<mailto:ec-bounces at 200william.com>
Cc: 'Marquis' <Marquis at bfms.com.au><mailto:Marquis at bfms.com.au>
Subject: RE: [200William-EC SP67851] SMOKING IN MARQUIS

Good afternoon Ed and Ors

Several published studies and recent case law, evidence that while smoking is banned in enclosed COMMON or SHARED AREAS of multi-unit housing in Australian states and territories, private living areas are generally exempt from these bans.

Accordingly, to ban smoking in private living quarters is as you say not "within the practical reach of the EC" and nor is it practically enforceable.

I also do not smoke and whilst I do not encourage smoking within my unit, I certainly do not ban my guests from smoking.

Regards
Brook

From: ec-bounces at 200william.com<mailto:ec-bounces at 200william.com> [mailto:ec-bounces at 200william.com] On Behalf Of Edward Sainsbury
Sent: Saturday, 17 April 2021 2:33 PM
To: Craig Laforest <cscl at optusnet.com.au<mailto:cscl at optusnet.com.au>>; ec at 200william.com<mailto:ec at 200william.com>; ec-bounces at 200william.com<mailto:ec-bounces at 200william.com>
Cc: 'Marquis' <Marquis at bfms.com.au<mailto:Marquis at bfms.com.au>>
Subject: Re: [200William-EC SP67851] SMOKING IN MARQUIS

Hi Exec Committee,

Can the Body Corporate ban smoking inside a person's apartment? Is this within the practical reach of the EC? I want to ensure we are not over reaching.

My personal opinion is I am not for smoking, I do not smoke, and my apartment is non-smoking.

Regards,
Ed

From: ec-bounces at 200william.com<mailto:ec-bounces at 200william.com> <ec-bounces at 200william.com<mailto:ec-bounces at 200william.com>> On Behalf Of Craig Laforest
Sent: Friday, 16 April 2021 9:34 AM
To: ec at 200william.com<mailto:ec at 200william.com>; ec-bounces at 200william.com<mailto:ec-bounces at 200william.com>
Cc: 'Marquis' <Marquis at bfms.com.au<mailto:Marquis at bfms.com.au>>
Subject: [200William-EC SP67851] SMOKING IN MARQUIS

Good morning committee members,
In line with the law, we have agreed that there is to be no smoking in any lot (inside and outside) and also in common areas. I am still smelling smoke from some areas of the building and think it would be a good idea to send the following out to each apartment and to put it in the notice box for a short time, in each elevator.
Unless you have an objection to this, I will ask Darren to distribute a letter to all apartments to advise tenants/owners that smoking is prohibited, including the information below, as soon as he can.  This hasn't been done before, I believe.
Thank you and regards,
Craig
Breach of a by-law and penalties
In NSW, residents in breach of any by-law risk that the Owners Corporation makes an application to NCAT<http://www.ncat.nsw.gov.au/> for the imposition of a civil penalty for breaching the by-law. Such penalties are quite severe. This penalty carries a monetary penalty of up to 10 penalty units (which is $1,100). A repeat offender (ie one who was fined $1,100 and breached the by-law again within 12 months of being fined) can be fined $2,200.
Any owner who is in breach of the occupancy limits set out in the legislation are potentially liable to fines of $5,500 and $11,000.
In the event that an owner breaches a NCAT Order to, for example, stop smoke drift, or remove an animal, Section 72 (3) of the Civil and Administrative Tribunal Act 2013<http://www.legislation.nsw.gov.au/#/view/act/2013/2/full> provides for a civil penalty. These penalties have increased to up to $11,000 for an individual and $22,000 for a corporation.

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