Body Corporate and Community Management (Accommodation Module) Regulation 2020 (Accommodation Module)

NUISANCE, HAZARD, UNREASONABLE INTERFERENCE - where the applicant says cigarette smoke is entering their lot - whether the body corporate must enforce the legislation - whether a by-law regulating smoking is required.

Act, ss 94, 167, 169A

• [1] This application is about smoking at the scheme.
• [2] The applicant asserts that cigarette smoke from the chairperson's Lot 4 (directly above Lot 1) enters their Lot 1 through the bathroom vent and into their bedroom, as well as into their kitchen pantry through a hot water cupboard. They also say smoke is experienced in the common foyer. They say smoke drift occurs on a regular basis.
• [3] The applicant says passive smoke is dangerous and the residents in their lot are particularly affected by it. They refer to the legislation about causing a nuisance or hazard by smoking.
• [4] 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.
• [5] The applicant wants the chairperson and committee to respond to the Form 1s and enforce the legislation by taking action against the owner of Lot 4. The applicant also wants an additional by-law regarding smoking. I will consider whether orders are warranted.

• [6] 20 Tropical Sands community titles scheme 15527 (20 Tropical Sands) is a 9-lot scheme in Southport. The community management statement (CMS) shows the Accommodation Module applies. The scheme is registered as building unit plan 105170.
• [7] The application seeks the following orders:
  1. The Body Corporate chairperson and committee respond to the two Form 1 forms I have sent in regards to smoke drift into my unit. To date I have had absolutely no response.
  2. I want the committee to enforce the section 167 and take action against unit 4 that is continuing to allow their cigarette smoke to enter the common areas and into my unit via the hot water cupboard. The legislation states an occupier and their guest must not cause nuisance or hazard by smoking. They breach section 167 of the BCCM Act if they cause a nuisance or hazard by: Regularly using a smoking product on the lot or common property; Regularly exposing an occupier of another lot, or their guest, or a person who is lawfully on the common property, to the smoke or emission of the smoking product either on the lot or the common property. The owner of the lot must make modifications to their pantry to ensure that smoke drift does not enter another person's lot or enter the common area. They are responsible for keeping the smoke drift in their own unit.
  3. I want an additional by law added to the by laws regarding smoking not being allowed in common areas. I proposed this at the last AGM in April but due to the Strata Managers not following my direction they did not write it correctly on the agenda so the motion was ruled out of order. I have no idea when this will be put forward again, so I want to be protected from having smoke drift in the common areas which is a risk to my and my son's health.

• [8] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute 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.[1] I am satisfied I have jurisdiction to determine this matter under the dispute resolution provisions.[2]

• [9] The applicant originally applied for conciliation of this and other matters in September 2024.[3] A conciliation session was held in October 2024, but a finalised agreement was not reached.
• [10] This application was lodged on 9 July 2025. The Commissioner's delegate sought clarification from the applicant on some aspects of the application,[4] which was subsequently amended.[5]
• [11] The Commissioner invited submissions from the committee and all owners.[6] Only the owner of Lot 4 made a submission. The applicant did not elect to obtain or respond to the submission.[7]
• [12] The Commissioner then referred the application to department adjudication.[8] I have now investigated the dispute, including reviewing the application and submission.[9]
• [13] Given the circumstances, I will make some comments about the dispute resolution process.
• [14] The owner of Lot 4 says, in their submission, that the dispute has 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. 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.
• [15] The legislation provides for low-cost dispute resolution. In the first instance, applicants must attempt to resolve their concerns directly with a respondent. If that is unsuccessful, applicants are usually required to attempt to resolve the dispute through conciliation. Conciliation is a form of mediation in which a conciliator with expertise in the legislation will try to assist the parties to reach an agreement. The conciliator will provide information but does not make findings on the issues in dispute. If conciliation is unable to resolve a dispute, an applicant can apply for adjudication. That is a more formal process in which parties are invited to make written submissions in response to the application, before an adjudicator makes a binding order to determine the legal issues raised in the application.
• [16] 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.

• [17] The owner of Lot 4 says 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. They also dispute the applicant's hot water system has caused smoke drift from Lot 4 or that they are responsible for it. The submitter says they are willing to consider fair and practical measures that genuinely address concerns.
• [18] The submitter says 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. 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.
• [19] The submitter notes the complainant 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.

• [20] In deciding this application, I will note the relevant legislation and the particular orders sought.

• [21] The Tobacco and Other Smoking Products Act 1998 prohibits smoking in certain 'enclosed' places.[10] Within a 'multi-unit residential accommodation', which specifically incudes community titles schemes,[11] that includes encloses places which are 'common areas'. But that legislation does not expressly prohibit smoking within a community titles lot.
• [22] The body corporate legislation provides for a body corporate to resolve to record a by-law to prohibit or restrict smoking or inhaling smoking products on all or part of the common property or on all or part of an outdoor area of a lot or an exclusive use area.[12] An outdoor area includes a balcony, courtyard, patio, or verandah. That provision does not contemplate a by-law to prohibit smoking within enclosed areas in a lot.
• [23] The regular use of a smoking product on a lot or common property can be a nuisance, hazard, or unreasonable interference under section 167 of the Act if a person on another lot or common property is regularly exposed to smoke or emission from the smoking product.
  1. Nuisances

(1) 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.

(2) Without limiting subsection (1), the occupier contravenes this section if -

(a) the occupier regularly uses, or regularly permits an invitee to use, a smoking product on the lot or the common property of the scheme; and

(b) an occupier of another lot or an invitee of the occupier of the other lot, or a person who is lawfully on the common property, is regularly exposed to the smoke or emission from the smoking product -

(i) in the other lot; or

(ii) on the common property.

• [24] In some previous disputes, adjudicators have found that an occupier has breached section 167 of the Act or a recorded by-law by smoking.[13] In others, a breach has not been substantiated.[14] Whether there has been a breach will depend on the circumstances and evidence.
• [25] If a body corporate has recorded a by-law regulating or prohibiting smoking, it will have a statutory obligation to enforce that by-law.[15] A body corporate must also administer the common property for the benefit of all owners.[16] But unless there is a relevant by-law, a body corporate has no statutory role or obligation in regulating activities within a lot including smoking. Notably, a body corporate has no express statutory responsibility to enforce section 167 of the Act. However, it must act reasonably in undertaking its functions.[17]
• [26] If a person considers another person at a scheme is breaching section 167 of the Act, prima facie that would be a matter for them to pursue directly with the other person.

• [27] The applicant seeks an order that the chairperson and committee respond to the two 'Form 1' forms they have submitted.
• [28] I note that the chairperson is not named as a respondent to this application and could not be.[18] The chairperson would have no individual responsibility (in their capacity as chairperson rather than as an occupier) in regard to the issues in this dispute. Accordingly, an order could not be made against the chairperson in this particular application. If the respondent body corporate had some responsibility for the issues raised, an order could potentially be made against the committee (notwithstanding that the committee was not named as a respondent and could not be), because the committee has responsibility for day-to-day administration of the body corporate and can make decisions for the body corporate.[19]
• [29] The applicant gave the body corporate 'Form 1' forms in September 2024 and May 2025. Each alleged the owner of Lot 4 was breaching section 167 of the Act.[20] It appears the first form was given by the applicant after they complained to the body corporate and were told by the body corporate manager (BCM) they needed to give the committee a Form 1 if they wanted to body corporate to act. But the applicant says they received no response to the forms.
• [30] BCCM Form 1 is an approved form by which owners or occupiers can notify the body corporate of an alleged contravention of a by-law.[21] As section 167 of the Act is not a by-law, Form 1 is not applicable to it. The advice from the BCM was unfortunately inappropriate in that regard.
• [31] Arguably a reasonable body corporate would have responded to the applicant's forms, even if to advise that it did not consider further action was required by it or able to be taken by it. However, I do not consider the applicant has substantiated a legislative obligation on the committee or the body corporate to respond, such that an order is warranted.

Order 2 - enforcement of section 167

• [32] The applicant wants the committee to enforce section 167 of the Act and take action against the owner of Lot 4 for allowing cigarette smoke to enter common areas and Lot 1.
• [33] The application lists dates smoke was experienced and statements that smoke can be smelt in Lot 1 and the foyer. But no evidence is provided as to the volume or source of the smoke. There is some indication that the committee believed it came from a neighbouring property, but the applicant denied that. It does not appear to be suggested that anyone is smoking on the common property itself. The applicant asserts the owner of Lot 4 smokes on the lot.
• [34] It may be that an occupier in Lot 4 is regularly using a smoking product on their lot and that the occupiers of Lot 1 are regularly exposed to smoke as a result. At this stage, I have insufficient evidence to reach a finding as to whether any occupier in Lot 4 has contravened section 167 of the Act. But at this time, it is not necessary for me to investigate that further.
• [35] The applicant has not established that the body corporate must regulate smoking on individual lots, given the current by-laws. The applicant has not demonstrated that the body corporate has a statutory responsibility to enforce section 167 of the Act against any occupier. If the applicant believes the owner of Lot 4 is breaching section 167 of the Act, they could pursue a dispute directly against the relevant occupier. But the applicant has not substantiated the basis for the second order to be made against the body corporate or its committee.

• [36] Finally, the applicant wants a new by-law about smoking not being allowed in common areas.
• [37] The applicant says they proposed a by-law at the last annual general meeting (AGM), but the BCM did not follow their direction to write it correctly on the agenda.
• [38] In September the applicant said in an email to the BCM that they wanted to propose a motion to the committee to be discussed at the next meeting 'to make the building totally smoke free so that second hand soke does not enter other lots in the building'. The BCM said the applicant would need to submit a valid motion before the body corporate's financial year end.
• [39] The AGM on 9 July 2025 considered the applicant's Motion 11. It proposed: "That prohibit or restrict smoking on common property or an outdoor area. The amendments include the regular exposing a person in another unit or common area to second hand smoke may be; - a nuisance of a hazard or unreasonable interference". Motion 11 was ruled out of order as unenforceable due to insufficient information.
• [40] If an owner wants a new by-law, they should submit a motion to a general meeting proposing that the body corporate record a new CMS to include the proposed by-law. If the only change to the CMS is a change in the by-laws other than an exclusive use by-law, a special resolution is sufficient to approve the new by-law and CMS.[22] Unless the motion, or at least the explanatory material accompanying the motion, includes the exact wording of the proposed by-law it would likely be very difficult to implement the motion if passed. And owners need to know exactly what by-law they are being asked to vote on. The person chairing a general meeting should rule a motion out of order if it is unenforceable.[23]
• [41] Motion 11 at the 2025 AGM was properly ruled out of order. The motion was entirely unclear as to the terms of the proposed by-law. And with 3 votes in favour and 2 against, it would not have passed as a special resolution even if it had not been ruled out of order. The applicant attributes the wording to the BCM, but the applicant was responsible for submitting a motion in the terms sought.[24] The applicant has not evidenced what motion was submitted. Moreover, I am not clear from the application exactly what by-law the applicant is seeking.
• [42] If the applicant wants the matter reconsidered at a future general meeting, they must submit a new motion. That should spell out the actual by-law being proposed. It would then be a question for owners to decide whether they support that by-law having regard to the information provided to them at the time. But the applicant has not yet established that the body corporate must agree to a by-law regulating or prohibiting smoking at the scheme, regardless of the form of by-law that they propose. Accordingly, the applicant has not established that order currently sought is warranted.

• [43] I acknowledge the frustration for the applicant if the occupiers of Lot 1 are regularly exposed to cigarette smoke. But the applicant has not established that the body corporate has an obligation to address that in the current circumstances. They have not established that the particular orders sought should be made. I have dismissed the application.
• [44] 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.[25] 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.
• [45] The owner and occupiers of Lot 4, for their part, 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. 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.

[2] Sections 227, 228, 276 and schedule 5 of the Act

[10] Section 112 of the Tobacco and Other Smoking Products Act 1998

[11] Schedule 1 of the Tobacco and Other Smoking Products Act 1998

[13] For example: Georgina Views [2024] QBCCMCmr 357, Champelli Palms [2024] QBCCMCmr 347, Regency Place South [2024] QBCCMCmr 138, Dewsbury Park [2023] QBCCMCmr 297, Artique [2021] QBCCMCmr 596

[14] For example: Fifth Avenue Terraces [2024] QBCCMCmr 354, Gracemere Island Three [2022] QBCCMCmr 309

[15] Section 94(1)(b) of the Act

[16] Section 94(1)(a) of the Act

[17] Section 94(2) and 100(5) of the Act

[18] Section 227(1) of the Act

[19] Section 100 of the Act

[20] One form referred to Lot 3, rather than Lot 4, but names the same person.

[21] Section 185(2) of the Act

[22] Sections 62(3)(a) and 106 of the Act

[23] Section 88 of the Accommodation Module

[24] Section 76 of the Accommodation Module

[25] The owner of Lot 4 should be aware that the previous conciliation application and this adjudication application against the body corporate do not prevent a new application being made directly against them.