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Is there a right to smoke on a balcony?
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31/05/2018 - 3:16 am
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My bedroom window is very close to my neighbour’s balcony. Unfortunately at the last AGM when the strata managers requested we review our by-laws the body corporate allowed her to smoke on her balcony following her plea stating she had a right to smoke on her balcony. She does this very late into the night – sometimes to 2 – 3am preventing me from opening my window to allow fresh air.  She also has loud conversations on the phone and with friends and has a very bright light which due to a concrete overhang lights up my bedroom. She sometimes leaves this light on all night. 
I have discussed all these issues with her to no avail. 
Is there a general rule for all strata buildings which limits use and these activities on balconies after a certain hour?
I’d appreciate your advice on this matter. 

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Lady Penelope
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31/05/2018 - 4:49 am
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The smoking is obviously causing a nuisance to you.

Was a Motion put on the Agenda at the last AGM about smoking? And if so what was the wording of the Motion?

The Model by-laws about smoking can be adopted at a General Meeting. You can propose a Motion and have it voted on. You don’t need the Committee to propose a Motion.

Regardless of any smoke penetration Motion being created, an occupant must not, under the Legislation, cause a nuisance and/or hazard. This would be a breach of the Act.

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. It is therefore up to you to raise this matter in writing with the Strata committee and if you receive no support from them then you would need to take this matter to NCAT.

The Model by-laws relating to smoking are below:

9   Smoke penetration
Note.

 Select option A or B. If no option 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.

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