Smoke-free guide clears the air for strata dwellers
Tobacco smoke drifting into your lounge room from the unit below has long been considered something that just has to be put up within high-density living. But it’s not just inconvenient – it’s a major health concern for some people. Anne Jones looks at solutions for resolving smoking disputes in strata buildings.
As a quarter of our population lives, owns or works in strata buildings, we need to ensure we have efficient and effective processes for enabling owners and tenants to resolve conflicts that often arise in high-density housing.
Although homes are regarded as private spaces, disputes can develop including when smoke from chain smokers drifts from their home or balcony into a neighbour’s bedroom or living room.
There is a small but growing body of research suggesting potential health harm from the infiltration of tobacco smoke into the homes of non-smokers. These findings come from air quality testing showing second-hand smoke can spread throughout the multi-unit residential block, contaminating apartments where there are not active smokers.
Complaints develop because many people exposed to smoke drift feel trapped because they have to keep doors and windows closed to stop the tobacco smoke from infiltrating into own homes.
There are solutions for resolving complaints as multi-unit housing regulations have provisions for dealing with nuisances. Just as loud music or barking dogs are dealt with through a complaints process, smoke drift can also be addressed with positive outcomes. We now have some successful case law studies and a growing trend of owners solving the problem by adopting smoke-free policies.
In the review of the NSW strata and community title laws, we have an opportunity to improve conflict resolution by making resources more visible and accessible. A clearing house for resources would help to raise awareness about ways of improving high density living including examples and advice on how best to resolve disputes.
ASH Australia has produced a step by step guide on Smokefree multi-unit housing: a guide for owners, tenants, agents, authorities and governments at http://www.ashaust.org.au/pdfs/SFhousingGuide.pdf
Strata Consultation Questions:
Q2. Can you see any future issues that need to be addressed in the legislation?
Q3. How could the management of strata and community schemes be improved?
Q4. Are there any changes needed to the way disputes in strata and community schemes are resolved?
Anne Jones OAM is the CEO of Action on Smoking and Health Australia (ASH) – a leading advocacy organisation aimed at reducing tobacco deaths, chronic diseases and the deceptive, misleading conduct of the tobacco industry. Anne has 18 years experience in media advocacy, coordinating tobacco control coalitions and advocating for improved tobacco control laws. Anne has jointly authored several online guides on tobacco-free sports, tobacco-free campuses, multi-unit housing and how to counter tobacco tactics – a guide to identifying, monitoring and preventing tobacco industry interference in public health. ASH Australia was formed in 1994 and is funded by the Cancer Council Australia and the Heart Foundation.
Pebri
January 30, 2012 at 7:47 pm
Assault by deadly fumes
My detailed written complaints to relevant authorities about my neighbours’ tobacco smoke invading my pensioner unit (one in a block of twenty-eight) and causing me everyday and everynight distress and torment produced no remedial intervention of any kind.
The response from Housing Tasmania was that all tenants have a right to smoke a legal product within the privacy of their own units. This specious nonsense was said despite our Tenancy Agreements which insist that we must not do anything to discomfort our neighours. This rule is not enforced by the Housing department which merely shunts off tenants’ complaints of this nature to the local council.
The local council does not want to risk any kind of legal involvement so it does nothing – except to reply to formal complaints by declaring that it will do nothing.
My written requests to the local police station seeking enforcement of Tasmania’s environmental laws produce the response that they are understaffed and too busy to attend – although a police constable during a single visit decared that if he detected tobacco smoke in my unit he would immediately confront the offender.
My drug-addicted neighours sit outside their units for hours at a time emitting clouds of tobacco smoke which drift with the prevailing breezes to my unit. This means that I cannot sit outside and enjoy the sunshine as they do. I am forced indoors.
While I’m trapped indoors the smoke from tenants’ indoor smoking in our conjoined block of four units permeates via the ceiling, vents and and unknown cracks into all parts of my own. This makes me sneeze and cough and suffer eye discomfort which I can relieve by repeated flushing with water.
Overall then, there is no relief from my neighbour’s everyday assaults unless they are all out or I vacate the area for a time.
The law makes relief available:
Section 53A of Tasmania’s Environmental Management and Pollution Control Act 1994 declares:
53A. Evidentiary provision for environmental nuisance
If, in a proceeding for an offence against section 53(1) or (2), an authorized officer or a council officer gives evidence, based on the officer’s own senses, that noise, smoke, dust, fumes or odour was emitted from a place occupied by the defendant and travelled to, or was, or was likely to be, detectable at, a place occupied by another person, that evidence is prima facie evidence of the matters so stated.
What this means is that a police officer or authorised council officer or one from the government’s Environment department can visit the offenders and, based on the evidence of his own senses (in this instance smoke and fumes and odours) and detected any of these either outside my unit or within it, he can write an Infringement Notice on the spot. I think this penalty is currently $260.
Laws deliberately left unenforced leave assault victims to seek their own relief, preferably in the least offensive way they can devise.
Unfortunately my repetitive but unheard commands to "Die you bastards, DIE!" have not produced this much desired consequence of wilful sin, but judging by their ugly "smokers’ faces" this yearned-for outcome is on its way.
brokenriver
February 5, 2012 at 2:59 am
Smoking in Units
I’ve had similar problem too. I have a Housing NSW flat in an old, poorly constructed building where odor permeates and causes me much discomfort. Visitors, who often prefer to invite me over rather than come to me, also comment on the noticeable tobacco smoke odor in the halls.
I see that we’ll never get our rights enforced to smoke free air in our homes for these reasons:
1. Public servants are intrinsically lazy & anticipate considerable difficulty in enforcement;
2. If the Department will not enforce such a rule, it does not want to have to allocate non-smokers to freestanding dwellings (which alternately shoudl be our right) if we object to tobacco smoke exposure;
3. There are a considerable number of tenants who have mental issues and smoke heavily, with them there would again be considerable difficulty with enforcement;
4. A lot of the tenants are the feral, junkie type again considerable difficulty in enforcement;
5. There is a lefty culture pervading the public service which supports dysfunctional behaviour & wants all to be equal, even if it means ‘keeping people down’.
Stafford Sanders
February 13, 2012 at 10:41 pm
Smokefree multi-unit housing
Health groups have received a snowball of complaints from people threatened by this highly toxic, carcinogenic airborne contaminant. That’s what it is, a physical hazard, just like asbestos – not a mere "nuisance".
Worldwide evidence shows secondhand smoke can cause rapid and significant harm even at low exposure levels. Small children are especially at risk and so are people with heart conditions, asthma and other consitions. People have been effectively driven from their homes because strata owners and government agencies have not acted to protect them.
To talk of some sort of equal "balance" between the rights of people to be protected and the "rights" of people to smoke in multi-unit blocks is illogical and irresponsible. As the NSW Council for Civil Liberties says, a person only has a right to smoke where there’s no likelihood of harming others. The strata law should be amended to acknowledge this and to give proactive protection; strata bodies and agents should adopt smokefree bylaws except where all residents in a block want smoking permitted – and then they should be required to warn all visitors of the smoke risk.
InFocus
February 17, 2012 at 2:15 am
Consistent Legislation Needed
Under the Protection of the Environment Operations Act, a resident can seek a court-issued noise abatement order for harmful noise emitted by neighbours. One who is affected by smoke drift (which is far more harmful than noise), has nowhere near the legal power to protect themselves.
People expect, and in fact demand, to drink water from their taps that is free from carcinogenic substances; should it be any different for the air we breathe in our apartments?
Vast amounts of solid studies show that passive smoking kills. As a matter of urgency, strata schemes should be smoke-free, both on common property and on lots.
dimitri19
April 3, 2014 at 2:32 pm
Our building supervisor just
Our building supervisor just had a company come in to clean our air ducts and replace the filters. We are so close to the city with a bus stop outside, it's a given our ducts are dirty and the air can be cleaner.
Peter Loxton
February 24, 2012 at 3:04 am
Smoke-free
Thank you for giving people like myself the opportunity to share our personal views on the issue of 2nd hand smoke.
For what it is worth, I am not a smoker and have never been a smoker. I have always been an active person and as I approach my 41st birthday, I find that living a healthy lifestyle is taking a higher priority. This is a big reason why I’ve made the effort to express my views.
I chose to spend a lot of time, energy and money to be as healthy as I can, including my education (Certificate III & IV in Fitness) as a Personal Trainer and Gym instructor. This effort not only makes me feel good (both now and in the future), but it reduces my burden on the countries health system. I get extremely frustrated at the lack of support for healthy people like myself; the current rules and regulations around 2nd-hand smoke only contributes to the frustrations that I and the majority of my friends and colleges experience.
The idea that the acts of other people have can have direct control over my health, and there is nothing that I (or the law) can do about it is disgusting. How is it that I have rights when it comes to noise pollution from my neighbours, but there is nothing I can do about their air pollution?
I have been renting (by choice) for over 20 years, and have always had to deal with 2nd-hand smoke from my neighbours. The only choice is to close all doors and windows, which does reduce the amount of smoke but does not stop it from entering the premises. It does however prevent the free flow of clean air and in the warmer months creates a hot box to live and sleep. Some of the rental properties I have occupied have had air-condition systems, which in my opinion is a waste money and energy, and creates additional health issues, especially while sleeping.
How is it that a state in American (California) – the home of the tobacco giants – can implement some huge changes in their smoking laws, yet Australia seems to lag behind when it comes to the protection of its people?
I was excited to read Anna Patty’s recent report (21/02/12) in the Sydney Morning Herald, where Health Minister Jillian Skinner spoke of the pending reforms for the state of NSW.
I hope these reforms can be implemented across Australia and soon.
I look forward to a world where you can walk, play and live, without having to breath in 2nd-hand smoke from people who obviously do not value life as I do.
Thank you for taking the time to read my thoughts.
nonsmokersmovement
February 28, 2012 at 2:49 am
Everybody has the right to live smokefree in their own home.
We agree with Anne Jones’ and ASH’s comments in general, but call for stronger measures with Strata Law, considering the difficulty and distress which families have already experienced, and pure vindictiveness, physical and psychological abuse from smoking neighbours which has caused which many families to drastically change their living conditions and even to move out of their own homes. Moving out is not a solution of course, as the same problem can occur in any strata where smoking is allowed.
This is totally unacceptable, especially with our knowledge of the dangers of tobacco smoke as a toxic air contaminant.
Asbestos would be removed if it was found in a property. Tobacco smoke is a known health hazard and, whether or not tobacco is a legally available product, the smoke is dangerous, not simply a nuisance, and should not be allowed in multi-unit housing.
Non-Smokers’ Movement of Australia Inc. (NSMA) has been fighting since 1977 for everybody’s right to breathe clean air, free from the poisons in tobacco smoke.
If you can smell tobacco smoke, then the poisons are going into your lungs and your family’s lungs and doing you harm (Advice from Thoracic Surgeon, Sydney).
With the proliferation of multi unit housing over the past 50 years in Australia, and the success of smokefree legislation in most other aspects of our lives,(public transport, private vehicles carrying children, indoors in all public buildings, at outdoor places such as beaches, playgrounds, crowded events, and some restaurants) we have come to an unfortunate situation where families are often subjected to assault from tobacco smoke in one important area – right where they should be able to lead healthy lives – in their own homes.
Clean water, clean air – everybody’s basic right. We expect clean water out of our taps at home. So should we be able to expect to breathe clean air, free from poisons.
Secondhand tobacco smoke triggers life-threatening heart and lung conditions, including asthma, as well as irritations to eyes and throat, nausea and headaches.
Smoke drift occurs when tobacco smoke from neighbours drifts away from one property and into others, onto balconies, through open windows and doorways.
Smoke seepage occurs when tobacco smoke "travels from its point of generation in a building to all other areas of the building. It has been shown to move through light fixtures, through crawl spaces, and into and out of doorways. Once exposed, building occupants are at risk for the irritant, allergic and acute and chronic cardiopulmonary and carcinogenic adverse health effects which are known to be associated with environmental tobacco smoke (secondhand smoke) exposure" California Chief of Occupational Health and Safety 1993.
Secondhand smoke is very difficult to remove, as it lingers and becomes entrapped in rooms and small spaces.
Smokers are often unaware, and some don’t care, that their smoke affects others around them. When told, they often become aggressive when asked to prevent their smoke from seeping and drifting into other properties. They say that, because they are using a legally available product, they should be able to use it anywhere, especially in their own homes. Our peak civil rights body, NSW Council for Civil Liberties, says that although tobacco is a legally available product, smoking should not be allowed in places where it may harm others.
NSW Strata Law must be changed, to recognise that secondhand smoke is not simply an annoyance or a nuisance. Tobacco smoke is a health hazard and, must be prevented from affecting others, just as in the workplace and in public spaces, indoors and outdoors.
We call on the NSW Government to make the following regulations:
1. All new-build multi-unit housing to be declared smokefree, with allowance for residents to apply to be allowed to smoke within their own property only if they can prove that their smoke will not affect others, either through smoke-drift or smoke-seepage. Specific smoke-tests would be required for proof. This would be similar to applying to have a specific pet, and ensuring that the pet does not affect other people in the property.
2. Declare that all current multi-unit properties must introduce smoke-free by-laws within 12 months of the regulation, application fees being waived and support funding sought from Federal Tobacco Taxes. Similar to Item 1, smokers could then make individual applications to be allowed to smoke, but with the same proviso, i.e. not to affect others on the property.
The advantage of having all established properties lodging within a limited time-frame is so that all property-owners would know their buildings would be safe in the near future – a "level playing field".
Another advantage – some smokers would, with further limitations on where to smoke, consider and try quitting, for their own and their family’s sake. Studies have shown that the majority of smokers wants to quit. There are many quitting therapies now available, harmless to smokers and, more importantly, harmless to the smoker’s family, friends and innocent passers-by.
Non-Smokers’ Movement of Australia Inc.
Graham666
February 29, 2012 at 6:06 am
Smoking neighbours
There needs to be a change to the laws so that "smoke-free" becomes the default position.
Currently owners have to convince a majority of owners to act at an AGM or extrordinary meeting. This is unfair as many people are frozen in inaction due to fear of change.
Smokers should be the ones trying to change by-laws to accommodate their vices, not neighbours trying to protect themselves from pollution.
Legislation to make smoke free the default position should rebalance matters.
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July 8, 2012 at 11:27 pm
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stratatitle
July 9, 2014 at 10:57 am
It should be all smoke free…
If a person wants to smoke he will smoke whether there exists a legislation to stop him from smoking or not. We as a community should take steps to kill the menace of smoking … in my opinion proper smoking rooms can be constructed but that is not going to sort this particular problem. Effective steps should be taken by community to ensure that this unnecessary evil is killed before it even takes birth in a persons system .. i.e the schools where our children go and study.