Qld unit owner takes on own body corp manager over smoking

Tropical Sands Southport

A Queensland unit owner has taken action against their own body corporate chairperson for smoking on their own lot.

Karen Gidea took the Body Corporate for 20 Tropical Sands at Southport on the Gold Coast to the Queensland Body Corporate and Community Management Commission (QBCCMC) , alleging that cigarette smoke from the chairperson’s own unit was infiltrating her property through a bathroom vent and into the kitchen pantry via a hot water cupboard.

She also alleged that smoke was experienced in the common foyer and that smoke drift occurred on a regular basis.

The application, which was dismissed, outlined Gidea’s argument, and the response from the body corporate.

“The applicant (Gidea) says passive smoke is dangerous and the residents in their lot are particularly affected by it,” the reasons for decision by QBCCMC adjudicator I Rosemann says.

“They refer to the legislation about causing a nuisance or hazard by smoking.

“The applicant wrote to the committee and sent it two ‘Form 1’ notices complaining about the smoking.

“However, the applicant says as the chairperson is involved, the body corporate does not respond and conciliation was not successful.”

Tropical Sands Southport

Gidea sought that the body corporate respond to both Form 1s, and introduce additional by-laws regarding smoking.

“To date I have had absolutely no response,” Gidea said.

“The legislation states an occupier and their guest must not cause nuisance or hazard by smoking.”

Meanwhile, the respondent chairperson, who was not named, said that the dispute had already been the subject of formal adjudication and there was no adverse finding against them.

“They say there has been no material change in circumstances or new evidence that would justify relitigating the matter,” the judgement said.

“They say requiring them to relitigate the same issue is inconsistent with procedural fairness and places an undue burden.

“They want the Commissioner to decline further mediation. However, that submission misapprehends the actual process.”

The applicant’s application was dismissed Picture: istock

The judgement added: “Contrary to the assertions in the submission, it is clear from the Commissioner’s records that this dispute has not previously been the subject of adjudication. Rather, there has only previously been a conciliation application. As such, the determination of this application is not relitigating a dispute that has previously been determined. Moreover, I am satisfied the owner of Lot 4, the committee, and all owners have had an opportunity to make submissions in response to this application such that the requirements of procedural fairness have been met.”

The respondent submitted that they “are entitled to the lawful use and enjoyment of their property … while acknowledging the need to minimise any impact on others, they say that must be balanced against their rights”.

“They assert the applicant seeks to impose disproportionate restrictions,” the finding said.

“They also dispute the applicant’s hot water system has caused smoke drift from Lot 4 or that they are responsible for it.”

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According to the reasons for the decsions, the respondent claimed that the applicant has lodged over 30 Form 1 complaints in the last 18 months, most directed at the owner or occupiers of Lot 4, and many of which have been repetitive, unfounded, or of a personal nature.

“They say this has placed unnecessary strain on the body corporate’s resources,” it said.

“They allege they have been subjected to verbal abuse from the applicant and repeated confrontations in common areas.

“They suggest this complaint is part of a broader pattern of targeting rather than a genuine, evidence-based grievance.”

Further, the respondent claimed that the applicant had “sought to introduce a by-law banning smoking but did not provide sufficient supporting material for the committee and owners to properly consider or vote on the proposal and was unable to secure support. They say it is inappropriate to pursue individual action against them”.

The adjudicator “acknowledged the frustration of the applicant” but said she had “not established that the body corporate has an obligation to address that in the current circumstances”.

“If the applicant can establish the smoke they are experiencing is emanating from Lot 4, they could pursue a dispute directly against those occupiers of Lot 4 who they assert are responsible,” the findings said.

“But the applicant would bear the onus of proof in any such proceeding.

“The applicant may also wish to seek professional advice as to whether there is scope to better seal the elements of their lot where they believe smoke is entering, to inhibit that ingress.”

The adjudicator added that, for their part, the Lot 4 owners “should be aware that the right to the use and enjoyment of their lot is not unfettered”.

“If they choose to smoke on their lot, and subject to any by-law regarding smoking that might be recorded in future, they must ensure they do not permit smoke to drift onto common property or into other lots in a manner that regularly exposes others to smoke,” the judgement said.

“They could consider closing windows and doors while smoking within the lot and improving the seal on any elements of their lot where smoke might be escaping.”

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