Bowe v Bailey and The Owners - Strata Plan No 61040 [2025] NSWCATCD 201;

(3) Pursuant to sections 232(1)(a) and/or 241 of the Strata Schemes Management Act 2015 (NSW), the Tribunal orders the first respondent lot owner, James Washington Bailey, to comply with the obligations imposed on him by -

(a) section 153(1)(a) of that Act - to not use or enjoy the lot that he owns or occupies in strata scheme 60140, or permit that lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the applicant lot owner, Adam Bowe; and

(b) by-law 5 of strata plan no. 60140 - to not create, cause or allow any nuisance on the lot that he owns or occupies in strata scheme 60140 that is likely to interfere with the peaceful enjoyment of the applicant lot owner's lot in the strata scheme; and

(c) by-law 9(2) of strata plan no. 60140 - to ensure that smoke caused by the smoking of tobacco or any other substance by him or an occupier, or any of his invitees or an occupier's invitees does not penetrate to the applicant lot owner's lot; and

(d) to that intent, the first respondent lot owner, James Washington Bailey:

(i) must not smoke tobacco products on the courtyards or balconies of the lot that he owns or occupies in strata scheme 60140;

(ii) must not cause or permit any person to smoke tobacco products on the courtyards or balconies of that lot; and

(iii) must not cause or permit the smoke, fumes or odour of any tobacco product to be emitted from the interior of that lot into the applicant lot owner's lot.

(5) If any party wishes to seek an order for costs, then:

(a) That party (the "costs applicant") is to provide to the other parties (the "costs respondents") and to the Tribunal any application for costs setting out the costs order they contend for and any written submissions (strictly not exceeding 5 pages) setting out the reasons relied on for making that order, together with any other relevant documents or material, within the 7 days after the date this decision is issued to the parties.

(b) The costs respondents are to provide to the costs applicant and to the Tribunal written submissions in response (strictly not exceeding 5 pages) setting out the reasons relied on against making that proposed order, together with any other relevant documents or material, within the 14 days after the date this decision is issued to the parties.

(c) The Tribunal proposes to dispense with a hearing in relation to the application for costs under section 50 of the Civil and Administrative Tribunal Act 2013 (NSW), with the intent that the costs issue will be determined on the papers. The parties are to include in their submission whether the application for costs can be adequately determined on the papers without the need for an oral hearing.

LAND LAW - Strata title - nuisance - hazard - tobacco smoke transmission between lots

Civil and Administrative Tribunal Act 2013 (NSW)

Residential Tenancies Act 2010 (NSW)

Strata Schemes Management Act 1996 (NSW)

Strata Schemes Management Act 2015 (NSW)

Strata Schemes Management Regulation 2016 (NSW)

Adams v NSW Land & Housing Corporation [2016] NSWCATAP 31

Cooper v The Owners - Strata Plan no. 58068 [2020] NSWCA 250

Gisks v The Owners - Strata Plan no. 6743; The Owners - Strata Plan no. 6743 v Gisks [2019] NSWCATCD 44

Pittman v Newport [2022] NSWCATCD 173

Precision Plastics Pty Ltd v Demir [1975] HCA 27; 132 CLR 362

Shaw v Euen [2023] NSWCATCD 68

Walker Corporation Pty Ltd v The Owners - Strata Plan No 61618 [2022] NSWSC 1246

The Owners - Strata Plan No 61040 (Second Respondent)

1. This application concerns tobacco smoke transmission between two lots in a strata scheme that is regulated by the Strata Schemes Management Act 2015 (NSW) (the SSM Act). The applicant, Mr Bowe, is the owner and occupant of the residential apartment at Lot 22 in strata plan number 60140 (the strata scheme). The first-named respondent, Mr Bailey, is the owner and occupant of Lot 6 in the same strata scheme, which is located two floors directly below Lot 22. The second-named respondent is the owners corporation for that strata scheme.
2. In his original application, Mr Bowe sought orders against Mr Bailey under sections 153, 231 and 241 of the SSM Act, compelling Mr Bailey to refrain from causing or allowing cigarette smoke to be transmitted from Mr Bailey's lot into Mr Bowe's lot - which Mr Bowe says causes a nuisance or hazard to him. The owners corporation was subsequently added as the second-named respondent to the proceeding; although it did not take part in the final hearing. Mr Bowe's application was also expanded to add parallel claims seeking to enforce by-laws 5(1) (nuisance) and 9(2) (smoke penetration) against Mr Bailey, in addition to section 153.
3. For the reasons set out below, it is appropriate that the Tribunal make orders under sections 232 and 241 of the SSM Act: (a) directing Mr Bailey (and his invitees) to refrain from smoking in the outdoor areas of Lot 6 and on the common areas of the strata scheme, and (b) requiring Mr Bailey to prevent tobacco smoke escaping from Lot 6 into Lot 22. The precise terms of the orders made by the Tribunal are set out at the end of these reasons.

1. I heard the amended application on 4 September 2025. Mr Bowe and Mr Bailey both appeared in person at the hearing. As indicated above, there was no appearance for the owners corporation.
2. The Tribunal file contains a copy of a notice of hearing issued by the Registry addressed to the owners corporation in the care of its strata managing agent, The 1888 Co, dated 21 July 2025, informing the owners corporation of the date, time and place of the hearing. On reviewing the file at the start of the hearing, I was satisfied that the notice of hearing was sent to the strata managing agent by email several weeks before the hearing date; that the owners corporation had been notified of the hearing; and that the hearing notice was not returned. I was therefore satisfied that the owners corporation was given adequate notice of the hearing. Despite this, the owners corporation failed to attend the hearing without putting any explanation before the Tribunal.
3. Having regard to those matters and to the fact that (firstly) Mr Bowe and Mr Bailey have both complied with the Tribunal's orders; (secondly) that they have both appeared at the hearing, ready to put their respective cases to the Tribunal; (thirdly) that Mr Bowe cannot obtain the relief he seeks without an order of the Tribunal; and (fourthly) that Mr Bowe's amended application did not seek any relief against the owners corporation, I was satisfied that both Mr Bowe and Mr Bailey would be seriously prejudiced if the matter was not heard as scheduled. I therefore continued with the hearing, notwithstanding the absence of the owners corporation.
4. The hearing proceeded in the usual manner. After Mr Bowe and Mr Bailey both made brief opening statements outlining their respective positions, they were both given opportunities to adduce the evidence that they wish to rely on in respect of the application; to cross-examine the other party's witnesses on the issues in dispute in the proceeding; to make submissions directly to the Tribunal on the issues to be determined; and to respond to the arguments made by the other party.

1. Mr Bowe relied on three affidavits that he had sworn in the proceeding - on 26 September 2024, 26 March 2025 and 1 August 2025, respectively - together with four volumes of exhibited documents that were referred to in that affidavit. He also relied on a substantial written outline of submissions, a chronology and a statement of facts that he had prepared. Mr Bailey did not object to any of those documents being used in the proceeding.
2. Mr Bailey relied on an affidavit that he had sworn in the proceeding on 12 March 2025, together with the minutes of an owners' corporation meeting dated 2 December 2024. Mr Bowe objected to several passages in Mr Bailey's affidavit. Some passages were rejected on relevance or procedural fairness grounds; however the remaining passages were allowed to be used, with the parties being able to address the Tribunal on the weight that should be given to that evidence.

1. Both parties gave sworn oral testimony to the Tribunal, in which they answered questions regarding various aspects of the dispute between them. In his oral testimony, Mr Bailey accepted that his affidavit had been prepared for him by a Mr Todd, who is the secretary of the strata scheme. Nevertheless, he confirmed that he had read it in full and agreed with its contents.
2. In his oral evidence, Mr Bailey acknowledged that by-law 9 (referred to below) was in place when he purchased Lot 6. He also confirmed that (firstly) he smokes cigarettes while standing in the open doorway between the northern courtyard and the living room of Lot 6, while watching television; and (secondly) he had read the various notices issued by the owners corporation concerning the non-smoking of tobacco and other substances in the complex, including in balconies, courtyards and common areas. He also acknowledged making the various statements attributed to him in Mr Bowe's affidavits.

1. Mr Bowe submitted that, since moving into Lot 6 in December 2023, Mr Bailey smokes tobacco products on the courtyards of Lot 6 and when straddled in the doorway between the front courtyard and the interior of Lot 6. He submitted that he has made repeated complaints to Mr Bailey, to the strata managing agent and to various members of the strata committee about smoke rising from Mr Bailey's lot, penetrating into the common property airspace and into the balcony airspace and interior of Mr Bowe's lot over an extended period, arguing that Mr Bailey's tobacco smoke interferes with Mr Bowe's safety and his peaceful enjoyment of his lot.
2. Mr Bowe argued that tobacco smoke has carcinogenic properties and that there is no safe level of exposure to second-hand tobacco smoke. He further argued that the penetration of tobacco smoke from Mr Bailey's lot into the balcony and interior of Mr Bowe's lot, caused him both a nuisance and a hazard and constituted a breach of by-laws 5 and 9 of the strata scheme's by-laws and a breach of section 153(1)(a) of the SSM Act. He argued that Mr Bailey had failed, neglected or refused to comply with breach notices that the owners corporation had given him in respect of his smoking of tobacco at Lot 6.
3. Arguing that he had established that it was likely the smoke was coming from Mr Bailey's lot, Mr Bowe said that the evidentiary onus was now on Mr Bailey to demonstrate that he ensured that his smoke did not penetrate into Mr Bowe's lot: Precision Plastics Pty Ltd v Demir [1975] HCA 27; 132 CLR 362. He further submitted that Mr Bailey's affidavit cannot be given any weight, as it was drafted for him by Mr Todd (with whom Mr Bowe had developed a level of animosity), used words that Mr Bailey acknowledged under cross-examination that he did not know or use, and because it had mischaracterised Mr Bowe's own affidavit evidence.
4. Mr Bowe submitted that he had sought to mediate the dispute with Mr Bailey through the local community justice centre, but Mr Bailey had refused to participate in a mediation when requested to do so. In these circumstances, it was appropriate for the Tribunal to make orders directing Mr Bailey to comply with section 153(1) and those by-laws, and that he must not smoke tobacco products in the outdoor areas of Lot 6 (or allow anyone else to do so) that he must not cause or permit smoke, fumes or odour from any tobacco products to be emitted from the interior of Lot 6 into Mr Bowe's lot.

1. Mr Bailey's submissions were very short. He asserted that Mr Bowe is a serial - and unjustified - complainant about everyone's activities in the strata scheme, and that his assertions in this case should not be accepted. Mr Bailey particularly argued that the application should be dismissed, because: (a) he is entitled to smoke within the private living areas on his property and does not smoke on the common property; (b) he only smokes about 2-3 cigarettes per day on Lot 6, (c) the strata managing agent had informed him that he was allowed to smoke within his lot; (d) there are other cigarette smokers in the strata scheme which could be the source of the cigarette smoke drift into Lot 22; (e) the various allegations made in Mr Bowe's affidavits are unsubstantiated; (f) in particular, Mr Bowe's claims of smoke penetration and health effects are denied; (g) Mr Bowe has undertaken no air quality testing nor submitted the results of any such air quality testing to substantiate the claims of smoke actually penetrating into Lot 22; and (h) Mr Bowe has not produced any specialist medical evidence to substantiate his claims of injury from the effects of smoke inhalation, or the effects of smoke inhalation on his ability to socialise. He also asserted that he gives Mr Bowe fair warning by text message when he intends to smoke his cigarettes at the property, in good faith and in order to live in harmony with Mr Bowe, which he argues is adequate accommodation for Mr Bowe.

1. In reply, Mr Bowe argued that the number of cigarettes smoked by Mr Bailey is immaterial, and that being forced to tolerate Mr Bailey's tobacco smoke penetrating into his own apartment space goes beyond the degree of "give and take" required in apartment living. Mr Bowe asserted that he relies on the protections given to him by the SSM Act and the by-laws, and that the onus lies on Mr Bailey to do what is sufficient to comply with the Act and those by-laws, arguing that Mr Bailey should have found out what the prohibitions on smoking in the complex were in advance, before he bought into the strata scheme: Walker Corporation Pty Ltd v The Owners - Strata Plan No 61618 [2022] NSWSC 1246 at [96]. He said that he does not wish to live in a situation where he must act to close up his apartment every time Mr Bailey gives him notice of his intention to smoke in the courtyard of his apartment, and does not want that notice arrangement to continue.

1. The evidence before the Tribunal demonstrates that Mr Bowe and Mr Bailey are both lot owners within the same strata scheme. Therefore, the Tribunal has jurisdiction to consider and determine the application under sections 232 and 241 of the SSM Act.

1. Strata plan 60140 was registered on 22 April 1999, approximately 25 years ago. It comprises of a three- or four-storey building which contains 28 strata units, basement car parking and storage rooms. At all material times, the scheme has been managed by The 1888 Co, as strata managing agent.
2. As noted above, Lot 22 is situated two floors directly above Lot 6. Mr Bowe purchased Lot 22 in 2009. He has personally occupied that lot since June 2014.
3. Looked at from above, the shape of the building resembles a squat capital letter "H", with the central section oriented generally east-west. There are two short wings, aligned north-south, at the eastern and western ends of the building, each of which contains six units. Lots 6 and 22 are located toward the western end of the central section, near the western wing. Both lots have a north-south alignment within the building, with their living areas on the northern side.
4. There is another apartment on the floor in-between Lots 6 and 22 (Lot 14). There is also another apartment above Lot 22 (Lot 28), which has a larger floor area than that apartment. Its southern side extends outward and hangs over part of Lot 6's southern courtyard, providing a ceiling to the airspace immediately outside the southern face of lot 22.
5. The building is also surrounded by mature trees. Those trees, the eastern and western wings, and the apartment above Lot 22 collectively shield lots 6, 14 and 22 from the prevailing winds on all sides.
6. The internal layouts of Lot 6 and Lot 22 are similar. Each unit contains two bedrooms and a bathroom along the south-facing wall, with a living/dining room and a kitchen along the north-facing wall. Externally, Lot 6 features two courtyard spaces (also referred to in the evidence as "balconies"), on its northern and southern sides. Lot 22 has a small balcony on the north-facing side, which is located directly above part of Lot 6's northern courtyard. There are three windows on the southern wall of Lot 22, which overlook the southern courtyard of Lot 6. The northern courtyard of Lot 6 and the balcony of Lot 22 are both accessed internally from each apartment via sliding glass doors. Each lot's kitchen features a north-facing window that overlooks the respective courtyard or balcony.
7. As a consequence of that layout, Lot 22 does not have natural cross-ventilation. Further, there is no mechanical ventilation in Lot 22, as there is no exhaust fan in the bathroom to extract moist air or smoke from that bathroom. The rangehood in the kitchen also does not ventilate to the outside of the apartment. Mr Bowe is therefore unable to flush moisture, cooking smoke or tobacco smoke out from his apartment using natural breezes passing through the apartment or mechanical ventilation. To ventilate the property, it is necessary for Mr Bowe to leave the bedroom and bathroom windows on the southern side of the apartment open during the day, exposing the apartment to smoke penetration from that side.
8. The distance between the floor of the Lot 6 courtyard and the floor of the Lot 22 balcony is 5.1 metres. Where the balcony of a lot is not covered, the airspace of the relevant lot at that balcony is limited in height to 2.4 metres above the floor slab. By contrast, uncovered courtyards are limited to a larger height above the relevant slab (3 metres). The vertical distance between the upper boundary of the Lot 6 northern courtyard airspace and the floor level of Lot 22 is therefore less than two metres (or thereabouts). At the back, the vertical distance between the upper boundary of the Lot 6 southern courtyard airspace and the bedroom windows on the southern side of Lot 22 is about 3 metres. These measurements are confirmed by the photographs produced by Mr Bowe.
9. On Mr Bowe's uncontested evidence (which I accept), the occupant of Lot 6 in 2015 (referred to only as "Craig") smoked cigarettes in both the front and rear courtyards of that Lot. When he did so, either when the winds around the lots were calm or light, his smoke would drift up and become trapped by the concrete slabs over Lot 22's balcony or its rear windows, and drift into either the living room or the bedrooms and bathroom of Lot 22. When it did so, Mr Bowe could smell and taste cigarette smoke inside Lot 22, which lingered in the bedrooms, the bathroom, the kitchen and the living areas. Mr Bowe found it difficult to breathe, his eyes became irritated, he developed a sore throat and he was unable to enjoy his home.
10. Mr Bowe took several steps to stop tobacco smoke from penetrating into Lot 22 from Lot 6 at that time, including submitting a motion for a special by-law restricting smoking in the complex, and asking Craig to stop his smoke from drifting into Lot 22. Craig agreed to stop smoking in Lot 6. As a result, tobacco smoke stop drifting into Lot 22; the smell of cigarettes did not linger inside Lot 22; Mr Bowe found it easier to breathe; his eyes were no longer irritated; and he was able to enjoy the property. Because of this, he withdrew the motion for the special by-law as it had become unnecessary.
11. Craig subsequently moved out of Lot 6 in about March 2017. In the meantime, the SSM Act came into operation in late 2016. After reviewing its by-laws in compliance with the requirements of that Act, the owners corporation repealed and replaced the whole of the by-laws at a general meeting in October 2017. In doing so, it adopted new by-laws 5 ("Noise and nuisance") and 9 ("Smoke Penetration"), which read as follows (relevantly):

By-law 5. Noise and nuisance

(1) An owner or occupier of a lot must not create, cause or allow any noise or nuisance on a lot or the common property likely to interfere with the peaceful enjoyment or safety of the owner or occupier of another lot or of any person lawfully using common property.

(2) ...

By-law 9. Smoke penetration

(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.

No-smoking signs were then installed in prominent places in each hallway through the strata scheme. Those signs remain in place.

1. By-law 9 essentially adopted and mirrored the wording of Option A of the model smoke penetration by-law that is found at clause 9 of Schedule 3 to the Strata Schemes Management Regulation 2016 (NSW), which had then taken effect.
2. By-law 5 is a little different. That by-law was introduced in a modified form that was based on the model by-law in clause 6 of that Regulation, which only concerned "Noise". The modified by-law that was adopted by the owners corporation in this case amended the model by-law, by:

(1) deleting the words ", or any invitee of an owner or occupier of a lot" that had appeared after the initial words "An owner or occupier of a lot"; and

(2) adding the words "or nuisance" after the word "noise" in two places - in the heading and in the body of what became subclause (1); and

(3) adding a new subclause (2), which concerned feeding birds and other animals from within the scheme (which is not relevant to the issues in this case).

1. The by-laws of the strata scheme were again fully repealed and replaced in March 2018, with the new by-laws being registered at that time. They have also been amended on other occasions since then. However, the terms of by-laws 5 and 9 have remained unchanged since October 2017.
2. Cigarette smoke began to drift into Lot 22 again in about November 2022, with the same results as had happened when Craig was living downstairs: Mr Bowe could smell and taste cigarette smoke inside Lot 22, which lingered in the bedrooms, the bathroom, the kitchen and the living areas; Mr Bowe again found it difficult to breathe, his eyes became irritated, he developed a sore throat and he was unable to enjoy his home. Mr Bowe wrote to the strata managing agent at that time, complaining of the smoke drift and asking for the strata committee to address the issue.
3. After further correspondence over the following months, the strata managing agent issued a circular notice to residents in the complex, setting out the terms of section 153 and by-law 9 and noting that continual breach of the by-law may result in action being taken in the Tribunal. The drifting of cigarette smoke into Lot 22 stopped after that notice was issued and Mr Bowe was again able to enjoy his home from February 2023 to about December 2023 without being irritated by cigarette smoke entering from outside.
4. Mr Bailey bought Lot 6 in November 2023, completing the purchase in mid-December. He has occupied Lot 6 at all material times since then. By his own admission at the hearing, Mr Bailey smokes tobacco cigarettes, including within the courtyards and the external doorways of Lot 6.
5. Mr Bowe was away when Mr Bailey moved in. When he returned, in January 2024, Mr Bowe again started to experience second-hand tobacco smoke drifting into Lot 22. In his uncontested evidence, Mr Bowe reports that the odour and the impact of the smoke were both stronger than he had experienced in November 2022-January 2023 but similar to his experiences in 2015. As a result, Mr Bowe could again smell and taste cigarette smoke inside Lot 22; Mr Bowe again found it difficult to breathe, his eyes became irritated, he developed a sore throat and he was again unable to enjoy his home. He reports that he found the smell of stale cigarettes to be stronger in his bedrooms and the bathroom, this time around.
6. Beginning in January 2024, Mr Bowe frequently raised with the strata managing agent the issue of second-hand smoke drifting through the common property and into Lot 22, asserting that he was unable to use the balcony or to open the windows of Lot 22 because of it. Initially, he could not identify the origin of the smoke concerned.
7. On 2 February, the strata managing agent issued another circular notice to the residents in the building, alerting them to complaints that residents and visitors had been smoking on their balconies, stating that the secondary smoke was travelling to other units "causing discomfort and potential health risks", reminding all residents of the terms of by-law 9, and requesting all residents to refrain from smoking on balconies "for consideration of your neighbours and compliance with the strata by-laws".
8. In mid-February, Mr Bowe made a further complaint to the strata managing agent of smoke continuing to drift into Lot 22. The strata managing agent then issued a further notice to all residents, asserting that by-law 9 was being breached by "secondary smoke ... travelling to other units and into the common property". Notwithstanding the issuing of that notice, Mr Bowe continued to complain of tobacco smoke drifting into Lot 22.
9. After searching for the source of the smoke over several months, Mr Bowe found an overflowing ashtray in the rear courtyard of Lot 6 in mid-March 2024. He raised this with the strata managing agent at that time, asking for contact details for the occupant of Lot 6 (Mr Bailey).
10. On 24 March 2024, Mr Bowe was in the bedroom of his apartment with the window open, when he saw smoke lingering under the overhang outside the bedroom window and being drawn into his bedroom through the open window, "like a vacuum". On looking outside his window, he saw Mr Bailey sitting in the southern courtyard of Lot 6, smoking a cigarette, with the smoke from the cigarette rising upwards and drifting into Lot 22. Mr Bowe closed the bedroom windows and attempted to ventilate Lot 22 using a portable fan through the open door and window on the northern side, but it was difficult to disburse the smoke this way. He re-opened the south-facing windows after Mr Bailey had stopped smoking, to continue flushing-out the smoke. This was not effective as Mr Bailey smoked another cigarette in the southern courtyard later the same day, causing more smoke to drift into Lot 22. Mr Bowe then visited Mr Bailey at Lot 6 the same day and asked him to stop smoking in the courtyards of Lot 6 as the smoke was drifting into Lot 22, but the only response that Mr Bailey gave him at that time was a general, "Ah ... yeah, I suppose".
11. The following day (25 March), the strata managing agent issued a by-law breach notice to Mr Bailey, recording that Mr Bailey or his visitors had been observed smoking on his courtyard and asking him to:

... Please ensure that when you are smoking within your apartment that all doors and windows are closed to prevent smoke drift accessing the surrounding lots. Smoking on or nearest to the courtyard perimeter should also be avoided at all times.

1. A few days later, on 1 April, Mr Bowe observed someone smoking a cigarette on the balcony of Lot 14, with their smoke drifting into the living area and kitchen of Lot 22. He spoke to one of the strata committee members that day, who agreed to inform the strata managing agent. Similar incidents occurred again on 7 and 9 April, following which Mr Bowe made requests to strata committee members and the strata managing agent for them to take further action. He also visited Lot 14 and asked them to stop smoking in the lot.
2. A few days later, on 12 April, the strata managing agent advised Mr Bowe that individual notices had been issued to Lots 6 and 14 in response to Mr Bowe's reports. This sparked a long chain of emails between Mr Bowe and the strata managing agent on the issue of smoking within the complex and a request by Mr Bowe for access to the other parts of the building so that he could re-post the no-smoking notices on the noticeboards throughout the building.
3. Smoke continued to drift into Lot 22 in June 2024, prompting Mr Bowe to make further complaints to the strata managing agent and to enquire about the steps that had been taken since his previous complaints were made. In July, the strata managing agent informed Mr Bowe that the Unit 14 tenant had positively advised them that no-one was smoking on their balcony since they had received the breach notice, whereas Mr Bailey only acknowledged that he had received the breach notice. Notwithstanding that acknowledgement, smoke continued to drift into Lot 22 over the next few weeks, which I am satisfied on the available evidence was coming from Lot 6.
4. On 7 August, after seeing Mr Bailey smoking in the northern courtyard of Lot 6 and (on returning to Lot 22, which he had left open while he had taken garbage to the bin room) finding Lot 22 "dense with tobacco smoke", Mr Bowe again sought to speak with Mr Bailey about the issue. They had a conversation in words to the following effect:

Mr Bowe: excuse me, you know that your smoke has been going straight into my lot.

Mr Bowe: your smoking. The smoke ... It comes up. It goes straight into my lot. We've spoken about this before.

Mr Bowe: please stop allowing the smoke to drift into my lot.

Mr Bowe: I just told you. Your smoke is coming straight into my lot.

Mr Bailey: and ... What do you want me to do about it?

Mr Bowe: just please stop smoking outside your lot. can you ... Just smoke inside and close your windows and doors when you smoke.

Mr Bailey: [aggressively] and I just told you! this is my house! I can do whatever I want!

Mr Bowe: ... smoke from coming up and entering my lot?

Mr Bowe: so you're not going to stop smoking on your courtyard?

Mr Bailey: No. And there is nothing you can do about it.

Mr Bailey then went inside and slammed his sliding courtyard door.

1. Mr Bowe observed smoke drifting into Lot 22 again the following evening, 8 August. Ongoing downstairs he saw Mr Bailey smoking another cigarette, at which time they had a conversation to the following effect:

Mr Bowe: no. I can smell it. It is coming straight into my lot.

1. As identified above, Mr Bowe commenced these proceedings on 12 August 2024. The following day, he provided copies of the application documents to Mr Bailey, who responded "yeah, whatever".
2. At the directions hearing that was held on 16 August, Mr Bailey gave an undertaking to the Tribunal that he would send a text message to Mr Bowe three minutes before smoking a cigarette on his lot until determination of the proceedings, or the Tribunal orders otherwise. That has given Mr Bowe an opportunity to close up Lot 22 on each occasion, including by taking his balcony furniture inside.
3. Over the weekend of 28-29 September 2024, Mr Bowe moved out of Lot 22 on a temporary basis, which he says (and I accept) he did to avoid being exposed to Mr Bailey's second-hand tobacco smoke.
4. In October 2024, Mr Bowe sought to mediate his dispute with Mr Bailey through a community justice centre operated by NSW Fair Trading. While the community justice centre wrote to Mr Bailey three times in that month in respect of that request, Mr Bailey did not respond to any of their invitations to mediate the dispute. The centre therefore advised Mr Bowe that it was unable to proceed further and suggested that he consider other options to resolve the dispute.
5. On Mr Bowe's evidence, which I accept, Mr Bailey has sent over 550 text messages between 16 August 2024 and 1 August 2025, giving Mr Bowe three minutes' warning of his intention to smoke a cigarette at Lot 6 - which is an average of just under 1.6 messages per day over those 11.5 months. The text messages sent by Mr Bailey to Mr Bowe demonstrate that Mr Bailey smokes cigarettes on Lot 6 every day, in the morning, afternoon and/or evening. On the evidence before the Tribunal, Mr Bailey has been smoking his cigarettes since the commencement of the proceeding, either in the northern courtyard of Lot 6 or while standing in the doorway between that courtyard and the inside of Lot 6, with the sliding door open.
6. Mr Bowe has modified his use of Lot 22 to avoid or minimise the impact of Mr Bailey's cigarette smoke, both when he is at home and when he is not:
   • When Mr Bowe is at home, he does not use the Lot 22 balcony while Mr Bailey smokes and for 10-15 minutes afterwards. Similarly, he brings in any washing that is drying on the balcony for that duration. As the Lot 22 kitchen does not have ducted exhaust, he is unable to disperse the smell and fumes of cooking without opening the kitchen windows and the balcony door. He must therefore often stop cooking for the same duration while Mr Bailey smokes cigarettes on Lot 6.
   • When Mr Bowe is not at home, he closes all of the windows and the balcony door to prevent smoke from entering the lot. As Lot 22 does not have a bathroom exhaust fan this causes moisture to accumulate in the apartment. He also does not leave washing to dry on his balcony, to avoid it smelling like cigarette smoke.
   • Mr Bowe feels isolated and unable to invite family and friends to his home because of Mr Bailey's second-hand smoke. He also feels uncomfortable in using the communal drying facilities at the building, saying that they are not clean and not secure.

Since moving out of Lot 22, Mr Bowe returns to the apartment from time to time to collect mail and to ventilate the apartment (except, he says, when Mr Bailey is smoking in the outdoor parts of Lot 6).

1. The text message notice system has not been perfect: there have been several occasions when Mr Bowe has not noticed messages that have come in in from Mr Bailey, and he has been unable to close up Lot 22 to prevent Mr Bailey's tobacco smoke entering it from Lot 6.
2. Mr Bowe also reports (and I accept) that he continues to smell smoke in the Lot 22 balcony area for up to 15 minutes after receiving one of Mr Bailey's text messages. The remnants of Mr Bailey's smoke still transfers inside Lot 22 when he reopens the doors and windows from the balcony.
3. On 6 March 2025, Mr Bowe's doctor issued a medical certificate that reported:

Mr Adam Bowe reports that he is irritated by smoke, in particular tobacco smoke. It causes eye and airway irritation, resulting in difficulty breathing and a runny nose. It is well documented that passive smoking can cause health risks and airway irritation.

That certificate (which I note was written in very general terms) was not challenged at the hearing.

1. On about 23 March 2025, Lot 14 was damaged by a flooding incident. The occupants of Lot 14 moved out at about that time. As recently as 1 August 2025, no-one has occupied Lot 14 while it has been repaired and advertised for renting.
2. I am satisfied on the evidence that there are no other occupants around Lot 22 who smoke tobacco on the outdoor parts of their properties, or whose smoke drifts in the direction of Lot 22.
3. Mr Bowe has renovated Lot 22 since about May 2025, while living away from the premises.

1. Sections 153(1)(a), 232 and 241 of the SSM Act provide as follows (relevantly):

153 Owners, occupiers and other persons not to create nuisance

(1) An owner ... or occupier of a lot in a strata scheme must not--

(a) use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or

(b) ...

Note: Depending on the circumstances in which it occurs, the penetration of smoke from smoking into a lot or common property may cause a nuisance or hazard and may interfere unreasonably with the use or enjoyment of the common property or another lot.

232 Orders to settle disputes or rectify complaints

(1) Orders relating to complaints and disputes The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following--

(a) the operation, administration or management of a strata scheme under this Act,

...

(e) an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme,

(f) an exercise of, or failure to exercise, a function conferred or imposed on an owners corporation under any other Act.

...

241 Tribunal may prohibit or direct taking of specific actions

The Tribunal may order any person the subject of an application for an order to do or refrain from doing a specified act in relation to a strata scheme.

1. I have considered Mr Bowe's application in accordance with these provisions.

Reference material on the impact of tobacco smoke

1. In his evidence, Mr Bowe has produced various independent reference materials addressing the impact of exposure to second-hand tobacco smoke, including:

(1) Article 8 of the World Health Organisation's Framework Convention on Tobacco Control 2003, to which Australia is a State Party.

(2) Priority Area 10 of the Australian Government's current National Tobacco Strategy (2023-2030), which states in part:

As more Australians than ever are living in apartments and other densely populated settings, there is a need to closely monitor the issue of smoking and smoke drift at residential premises and strengthen policy and regulatory approaches to increase the number of smoke-free homes, including in social housing and multi-unit housing.

(3) Statistics published by the Australian Bureau of Statistics in Insights into Australian smokers, 2021-2022: Snapshot of smoking in Australia.

(4) Research published by the Cancer Council Victoria, Grace, C, Greenhalgh, EDM and Tumini, V in 15.6 Smoking bans in the home and car, Tobacco in Australia: Facts and Issues, 2022, which states in part:

Air-nicotine air pollution increases in homes and common areas located adjacent to areas where smoking occurs because cigarette smoke spreads easily via gaps in doors, windows, cracks in walls, balconies, and courtyards, as well as internal mechanical ventilation and air conditioning systems, elevator shafts, hallways, and stairwells.

There is some evidence to suggest that residents living on higher floors in multi-level apartment buildings may be at risk of increased levels of second-hand smoke exposure, as smoke tends to accumulate at higher floors.

(5) Information published by the Cancer Council of New South Wales on its website, which states:

Effects of second-hand smoke on adults

Second-hand smoke contains more than 7000 chemicals, with 69 known to cause cancer.

There is no safe level of exposure to second-hand smoke. It can even be more toxic than the smoke inhaled directly from a cigarette, as lower temperatures allow more toxins to be present. Evidence suggests that side-stream smoke may become more harmful as it changes from fresh to stale.

Second-hand smoke causes immediate adverse effects on the cardiovascular system, which have short-term and long-term impacts.

(6) Research published by Physicians for a Smoke-free Canada in Smoke-Free Outdoor Public Spaces: a Community Advocacy Toolkit, 2010, which states in part:

When there is no wind, cigarette smoke will rise and then fall, and will saturate the local area with second-hand smoke;

When there is a breeze, cigarette smoke will spread in various directions, and will expose non-smokers down-wind.

(7) Research published by Hwang, J and Lee, K in Determination of outdoor tobacco smoke exposure by distance from a smoking source (Oxford Academic, 2014), which concluded that outdoor tobacco smoke was detectable with only one cigarette source at 9 metres away, and that, consequently, the minimum distance the outdoor tobacco source should be is 9 metres.

(8) Research published by Kim, S and Lee, K in PM2.5 Concentrations of Outdoor Tobacco Smoke at Different Distances From the Smoking Source: Is There an Optimal Distance for a Designated Smoking Area? (Oxford University Press, 2024). PM2.5 is a type of particulate matter and is considered to be a specific environmental marker for second-hand smoke. The paper concluded that outdoor tobacco smoke levels were significantly greater than zero, even at 21 metres.

1. Mr Bowe has also referred the Tribunal (in general terms) to instances where health legislation protects the public from exposure to second-hand smoke by prohibiting people from smoking in public places, including (as summarised by Mr Bowe):

(1) enclosed public places such as shopping centres, restaurants, cafés, schools and universities, commercial or business premises, community centres, churches, cinemas, libraries, galleries, trains, buses, aeroplanes, taxis, ferries, motels, fitness centres, hospitals, hotels and clubs; and

(2) outdoor public places such as swimming pool complexes, sporting grounds, train stations, light rail stops, ferry walls, bus stops, taxi ranks, entrances to public buildings, outdoor dining areas, hospital grounds, and any place that is within 10 metres of children's' play equipment.

1. These strict prohibitions stand in sharp contrast with the legislation addressing smoking adjacent to another person's residence, such as section 153, which is framed in more conditional terms, requiring there to be a demonstrated nuisance or a hazard before any prohibition on smoking becomes operational. The second limb of by-law 9 is much more consistent with that other legislation in that, while it still allows smoking within a lot, it prohibits the transmission of smoke from one lot to another, or to common property.

1. The issues in dispute have been considered by the Tribunal several times over recent years. Mr Bowe has relied on those decisions, including the Tribunal's acceptance of significant evidence concerning the hazards of passive inhalation of cigarette smoke drifting from one apartment to another in a strata scheme - including by considering some of the reference material that I have just referred to. As Mr Bowe relies on the findings made in those earlier decisions, it is appropriate to set out the significant parts of those decisions.
2. In Sheath v Whitley [2014] NSWCATCD (which concerned section 117 of the Strata Schemes Management Act 1996 (NSW), the predecessor to section 153 of the SSM Act in this case), Senior Member Buckley found that smoking was a hazard. He stated at [19]-[24] (my underlining):

19. There is, in my view no medical or scientific dispute that the inhalation of either primary smoke and second-hand smoke can cause an increased risk of adverse health effects. It is an issue of increased risk, not of the certainty of a health hazard becoming a reality.

20. Smoking is not illegal, except as prohibited by various restrictions of smoking in a public area, specifically as referred to in the Smoke-free Environment Act 2000, which outlaws smoking within certain public areas both inside and out. There is no legislation which prevents a home owner smoking in his own backyard, bedroom, lounge room, or wherever within the boundaries of the home that he either owns or rents. That is not necessarily the case with a strata scheme by virtue of the provisions of s 117 of the SSMA, which is in terms of a mandatory prohibition - "an owner lessee or occupant must not ...... cause a nuisance or hazard to the occupier of any other lot.." It is not necessary to establish intention. I determine that the risk of exacerbation of respiratory symptoms is a "hazard" within the meaning of s 117(1)(a) of the SSMA.

21. The four metre standard which the applicant submits as being appropriate is an indication of the relevant risk, as viewed from a public building perspective of the area in which smoking is to be prohibited. Lot 8 has a courtyard length which varies on its short side, the rear boundary of the dwelling of approximately 9.5 metres to the rear boundary fence which is 10.28 metres in length.

22. The inhalation of second-hand smoke is a hazard. It is adjudged as such by public health legislation. It is particularly so with regard to those, like the applicant and his daughter who suffer with respiratory complaints.

23. In their submissions lodged with the Tribunal on the 9 September 2013, the applicants enclosed a plan of the strata plan with an area in the courtyard of lot 8 designated as what they say would be the required area of prohibition.

24. In my view, the respondents are in breach of the terms of s 117. That breach goes not only to personal smoking, but allowing others, invitees to the property, to smoke in the courtyard area. Adopting the standard submitted by the applicants, which I view as apposite, I make an order that the respondent is not to smoke or allow others to smoke who are invitees or other occupants of lot 8, in an area of a dimension four metres from the boundary with lot 7 along the south west facing wall of the dwelling of lot 8, to a 90 degree line from that point to the rear boundary fence and including the irregular line which then runs to the boundary of lot'

1. In Adams v NSW Land & Housing Corporation [2016] NSWCATAP 31 at [60]- [64] the Appeal Panel summarised the definition of a private nuisance, in the context of section 51(1) of the Residential Tenancies Act 2010 (NSW) - which provides that "A tenant must not ... cause or permit a nuisance" - as follows (my bolding and underlining):

60. We agree with the appellant that the term "nuisance", as it appears in subs 51(1)(b) of the RT Act, is a reference to the legal concept of a private nuisance tort. That is, it is a reference to conduct of the kind that is likely to give rise to a private nuisance liability: see Aussie Traveller Pty Ltd v Marklea Pty Ltd [1998] 1 Qd R 1, p 12. As explained in the article of Amy M Rissman "The Price of Quiet Enjoyment" (1999) 7 APLJ 155, provisions such as these have become common in all leases, including commercial leases so that a landlord can control conduct of a tenant that may give rise to a private nuisance liability and also to protect the landlord from any potential private nuisance liability caused by the tenant in his/her use of the premises: see also Caroline Hunter, Judy Nixon and Michelle Slatter "Neighbours Behaving Badly: Anti-Social Behaviour, Property Rights and Exclusion in England and Australia" Macquarie Law Journal (2005) Vol 5, p 149.

61. In "Fleming's The Law of Torts" (Ed Carolyn Sappideen and Prue Vines 10th edition, Law Book Company 2011), the features of a common law private nuisance tort is described as follows:

Because of the large variety of situations encompassed by the term, the crucial point is easily missed that nuisance is a field of tort liability rather than any particular type of tortious conduct. Its unifying element resides in the general kind of harm caused, not in any particular kind of conduct causing it. ..., private nuisance refers to invasions of an occupier's interest in the beneficial use and enjoyment of land. It is this latter branch which deals, primarily, with conflicts over competing uses of land, defining obligations of neighbourliness ...

Another perplexing feature is that the word "nuisance" is commonly used in several distinct senses. It is sometimes used in a factual sense to describe the human activity or physical condition which is harmful or annoying, as when it is said that a rubbish heap or pressure drilling is a nuisance. At other times, it denotes the harm caused by such an activity or condition, emphasis being less on the cause than the type of harm resulting from it. This usage is preferable because the distinguishing aspect of nuisance, ..., is that it looks to the harmful result rather than to the kind of conduct causing it. In either of the abovementioned senses, the term does not connote legal liability, and the question remains whether a particular "nuisance" is actionable. ...

62. The principles of a private nuisance were recently considered by the Western Australia Court of Appeal in Marsh v Baxter [2015] WASCA 169. At [243] to [257] the Court relevantly said:

243 The gist of private nuisance is the interference with an occupier's use and enjoyment of their land. ...

244 Nuisance covers property damage and personal injury (compendiously referred to hereafter as "physical damage") and also extends to non-physical damage to an occupier's use and enjoyment of land, including that caused by air pollution, vibration, noise or dust. ....

245 The interference, in ... private nuisance, must be both substantial and unreasonable. This is in recognition of the fact that the existence of communities depends on the principles of give and take, and live and let live.

246 As stated in Fleming's The Law of Torts (9th ed):

The paramount problem in the law of nuisance is therefore to strike a tolerable balance between conflicting claims of neighbours, each invoking the privilege to exploit the resources and enjoy the amenities of his property without undue subordination to the reciprocal interests of the other ... Reasonableness in this context is a two-sided affair ... It is not enough to ask: is the defendant using his property in what would be a reasonable manner if he had no neighbour? The question is, is he using it reasonably, having regard to the fact that he has a neighbour? (467).

247 The test of whether an interference is unreasonable is objective. ...

248 In making a judgment as to whether interference is unreasonable, regard is had to a variety of factors including the nature and extent of the harm or interference, the social or public interest value in the defendant's activity, the hypersensitivity (if any) of the user or use of the plaintiff's land, the nature of established uses in the locality, whether all reasonable precautions were taken to minimise any interference, and the type of damage suffered: Southern Properties [118].

249 An abnormally sensitive person (or use) is not entitled to additional protection by reason of his or her sensitivity: Munro v Southern Dairies Ltd[1955] VicLawRp 19; [1955] VLR 332, 335. Thus, where a use to which a plaintiff puts his land is abnormally sensitive, it would be unfair to allow the plaintiff to enlarge his rights at the expense of the defendant, unless the defendant failed to adopt a precaution which would have made it possible to avoid the damage without appreciable prejudice to his own interests ....

63. In Stockwell v Victoria [2001] VSC 497, at [227] and [229], Gillard J said the following in regard to a private nuisance:

227 In his classic article "The Boundaries of Nuisance", (1949) 65 LQR 480 at 489, Professor Newark said -

(1) The term 'nuisance' is properly applied only to such actionable user of land as interferes with the enjoyment by the plaintiff of rights in land.

...

229 As the learned author went on to say, normally, interference with enjoyment must have some degree of permanence. That which is temporary, usually is not a nuisance. But he went on to express an exception in these terms -

But an exception is recognised in those cases where the defendant has accumulated on his land something likely to do damage if it escapes.

64. In summary, the main features of a private nuisance are:

(a) an interference, by the defendant (tenant) in his/her use of his/her land (premises), with an occupier's (neighbour's) use and enjoyment of his/her land (premises) - an interference can be physical damage to property or person and non-physical damage (e.g. damage caused by air pollution, vibration, noise and dust). However, the damage must at all times be to the occupier's (neighbour's) use and enjoyment of his/her land (premises);

(b) the interference must be substantial and unreasonable; and

(c) the test as to whether the interference is substantial and unreasonable is objective.

1. Applying those decisions to the SSM Act 2015, in Gisks v The Owners - Strata Plan no. 6743; The Owners - Strata Plan no. 6743 v Gisks [2019] NSWCATCD 44, Senior Member Goldstein found that second-hand tobacco smoke drifts from one strata lot to another strata lot was both a hazard and a nuisance, including because it interfered with the second lot owner's use and enjoyment of his lot in a way that was substantial and unreasonable, stating at [23]-[32] that (italics in the original; my underlining):

23. S117 of the Strata Schemes Management Act as referred to by Senior Member Buckley was not identical to s153 as relied upon by the lot owner, but it was in substantially the same terms, especially in its reference to "an owner lessee or occupant must not ...... cause a nuisance or hazard to the occupier of any other lot." which is substantially the same as:

'An owner....tenant or occupier of a lot in a strata scheme must not permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot'

as stated in s153.

24. In Adams v New South Wales Land & Housing Corporation [2016] NSWCATAP 31 at [64] an Appeal Panel summarized the definition of a private nuisance as follows:

'In summary, the main features of a private nuisance are:

(a) an interference, by the defendant (tenant) in his/her use of his/her land (premises), with an occupier's (neighbour's) use and enjoyment of his/her land (premises) - an interference can be physical damage to property or person and non-physical damage (e.g. damage caused by air pollution, vibration, noise and dust). However, the damage must at all times be to the occupier's (neighbour's) use and enjoyment of his/her land (premises);

(b) the interference must be substantial and unreasonable; and

(c) the test as to whether the interference is substantial and unreasonable is objective.'

25. Adams v New South Wales Land & Housing Corporation was concerned with a decision to terminate a social housing tenancy agreement on grounds of a breach of the agreement, namely whether the tenant had caused or permitted a nuisance.

26. As found in Adams at [60], albeit in context of the Residential Tenancies Act 2010 (NSW), I also find that the reference to nuisance in s153(1)(a) of the Strata Schemes Management Act is a 'reference to conduct of the kind that is likely to give rise to a private nuisance liability' and that the description of a private nuisance as stated in [24] is applicable.

27. I accept the lot owner's evidence and find that second hand tobacco smoke drifts from Lot 7 into his living room and kitchen via windows and doors, and depending on wind flow direction, in all of the rooms within his lot. Ms Cameron admits that she smokes in her lot, lot 7, and that she has not ceased smoking.

28. I find that while the Owner's Corporation's managing agent does the best she can to address the lot owner's complaints regarding smoke drift, the Strata Committee of the Owner's Corporation does not view these complaints seriously. Ms Savva and Mr Lukas state that they don't consider the lot owner's complaints as matters that concerned them. I further find that such an attitude was wrong and that their attitude to s153 of the Strata Schemes Management Act was and is misconceived.

29. I further find that the smoke drift that emanates from lot 7 owned and occupied by Ms Cameron which enters into lot 5, owned and occupied by the lot owner, is a hazard for the same reasons as found by Senior Member Buckley in Bill Sheath and Rhonda Sheath v Rick Whitley and Sandra Whitley as stated in the passages extracted above. The lot owner complains in his email of 16 March 2015 of his health and safety being of primary concern and his health concerns regarding inhalation of cigarette smoke which he describes as a toxic chemical cocktail. I accept that evidence of his concerns regarding tobacco smoke drift.

30. I further find that the smoke drift that emanates from lot 7 owned and occupied by Ms Cameron which enters into lot 5, owned and occupied by the lot owner is a nuisance because it is an interference with the lot owner's use and enjoyment of his lot which is substantial and unreasonable. His evidence in my view establishes that fact.

31. The finding in the previous paragraph is based on my acceptance of the lot owner's evidence and the virtual concession by Ms Cameron that she smokes in lot 7, although she tries to close all windows and doors when she does so. The fact that the lot owner has complained of this issue from 2015 to 2017 leads me to find that his complaints are not trivial or lack a serious element and have not been properly addressed. The fact that the Strata Committee has misconceived the position in connection with s153 of the Strata Schemes Management Act has not assisted the resolution of this issue.

32. I will make the following orders to resolve the lot owner's dispute regarding smoke drift from lot 7 into his lot.

1. As noted above, by-law 9 is consistent with clause 9 of the model by-laws, contained in schedule 3 to the Strata Schemes Management Regulation 2016 (NSW). Writing in Cooper v The Owners - Strata Plan no. 58068 [2020] NSWCA 250, the Court of Appeal (Basten and Macfarlan JJA and Fagan J) noted at [37] that clause 9 of the model by-laws (amongst others) was "expressly designed to deal with activities which may adversely affect the amenity of other lots ..."
2. In Pittman v Newport [2022] NSWCATCD 173, Senior Member French set out a substantial amount of evidence that was produced by the parties to that case, about the effect of tobacco smoke including the following material (at [51]-[58], my underlining):

The applicant Lot Owners reference material

51. The applicant Lot Owners rely on the World Health Organisation's Framework Convention on Tobacco Control 2003, United Nations Treaty Series vol. 2302, p 166 (FCTA), which has been ratified by Australia. Article 8 of the FCTA states:

Article 8

Protection from exposure to tobacco smoke

1. Parties recognise that scientific evidence has unequivocally established that exposure to tobacco smoke causes death, disease and disability.

...

52. I also note the following recital from the Preamble to that treaty:

Recognising that scientific evidence has unequivocally established that tobacco consumption and exposure to tobacco smoke cause death, disease and disability and that there is a time lag between exposure to smoking and the other uses of tobacco products and the onset of tobacco-related diseases,

53. The applicant Lot Owners also rely upon Principle 1 of the "Statement of principles and relevant definitions underlying protection from exposure to tobacco smoke", which was adopted that the Conference of the Parties to the WHO FCTA, Second Session, Bangkok 30 June - 6 July 2007 (found in Conference of the Parties to the WHO Framework Convention on Tobacco Control, Second Session, Bangkok, 30 June - 6 July 2007: Decisions and Ancillary Documents, Geneva, 2008):

Principle 1

6. Effective measures to provide protection from exposure to tobacco smoke, as envisioned by Article 8 of the WHO Framework Convention, require the total elimination of smoking and tobacco smoke in a particular space or environment in order to create a 100% smoke-free environment. There is no safe level of exposure to tobacco smoke, and notions such as a threshold value for toxicity from second-hand smoke should be rejected, as they are contradicted by scientific evidence. Approaches other than 100% smoke-free environments, including ventilation, air filtration and the use of designated smoking areas (whether with separate ventilation systems or not), have repeatedly been shown to be ineffective and there is conclusive evidence, scientific and otherwise, that engineering approaches do not protect against exposure to tobacco smoke.

54. Additionally, the applicant Lot Owners rely upon the Australian Government's National Tobacco Strategy. The 2022-2030 Strategy in still in development, and consequently the 2012-2018 Strategy continues in force (Intergovernmental Committee on Drugs, National Tobacco Strategy 2012-2018, Commonwealth of Australia, 2012). The 2012-2018 strategy includes as "priority area 8" "the reduction in exceptions to smoke free workplaces, public places and other settings". It includes as an action item in this priority area:

8.8 Monitor the issue of smoking and smoke-drift at residential premises and consider policy approaches to support smoke-free homes, particularly where children are present.

55. The Consultation Draft National Tobacco Strategy 2022 (Commonwealth of Australia, 2022) includes as priority area 10 "the elimination of exceptions to smoke free workplaces, public places and other settings". It includes as a proposed action item in this priority area:

10.4 Monitor the issue of smoking and smoke-drift at residential premises and consider policy and regulatory approaches to encourage smoke-free homes, including for public housing and multi-unit housing.

56. The applicant Lot Owners also cite research published by the Cancer Council Victoria in support of the following propositions (Grace, C, Greenhalgh, EM and Tumini, V, 15.6 Smoking bans in the home and car, Tobacco in Australia: Facts and Issues, Melbourne, Cancer Council Victoria, 2022):

• Air-nicotine air pollution increases in homes and common areas located adjacent to areas where smoking occurs because cigarette smoke spreads easily via gaps in doors, windows, cracks in walls, balconies, and court yards, as well as internal mechanical ventilation and air conditioning systems, elevator shafts, hallways, and stairwells.

• There is some evidence to suggest that residents living on higher floors in multi-level apartment buildings may be at risk of increased levels of second-hand smoke exposure, as smoke tends to accumulate at higher floors.

57. The applicant Lot Owners also rely upon a publication produced by Physicians for a Smoke-free Canada (Smoke-Free Outdoor Public Spaces: A Community Advocacy Toolkit, Ottawa, 2010) to support the following propositions:

• Where there is no wind, tobacco smoke will permeate the local area, rising and falling, and where there is wind, spread in many directions

• Tobacco smoke can be detected between 25 - 30 feet away from its source.

58. Additionally, they rely upon an Oxford Academic publication (Hwang, J & Lee K, Determination of outdoor tobacco smoke exposure by distance from a smoking source, Oxford Academic, 2014) which concluded that outdoor tobacco smoke was detectable with only one cigarette source at 9 meters away, and that consequently, the minimum distance the outdoor tobacco source should be is 9 meters.

1. After dealing with the parties contentions, Senior Member French set out in-depth applicable case law decisions - including the Sheath v Whiteley and Gisks decisions referred to above - before focusing the issues to be determined by the Tribunal as follows (at [91]):

Having regard to what has been set out above, in order to determine the outcome of this application, the questions the Tribunal must pose and answer are as follows:

(a) Do the respondent Lot Owners cause or permit the use of their Lot, and in particular, the balcony of their Lot, to smoke tobacco products?

(b) If the answer to (a) is "yes", does tobacco smoke, fumes and odour emitted during such use enter the airspace of applicant Lot Owners' balcony and into the interior of the applicant Lot Owners' Lot?

(c) If the answer to (b) is "yes" does this constitute a substantial and unreasonable interference with applicant Lot Owner' ordinary use of their Lot (nuisance) and/or does it constitute a hazard?

(d) If the answer to (c) is "yes" what remedy are the applicant Lot Owners entitled to?

Finding that the answers to all those questions was "yes", the Senior Member made orders preventing the respondent lot owners from smoking tobacco products on the balcony of the lot, or permitting any other person to smoke tobacco products on the balcony, or causing or permitting smoke, fumes or odour of any tobacco product to be emitted from the interior of the lot into the applicant's lot.

1. In coming to that decision, Senior Member French reasoned at question (c) ([109]-[119], my underlining):

109. As the outline of authorities set out above makes clear, is not sufficient for the applicant Lot Owners to merely prove some form of interference with their Lot that is associated with the respondent Lot Owners' use of tobacco products on their Lot. The law permits a person to use their land in a manner that interferes with the use by a neighbour of their land, provided this interference is not unreasonable.

110. The application of the unreasonableness test requires an articulation of the context in which that test is to be applied. In this case the 'lands' in issue are Lots within a strata scheme. The strata scheme is a medium rise residential block located in a residential neighbourhood among other apartment blocks. This is a relatively high-density type of communal living. The applicant and respondent Lot Owners use their Lots as a home. In my view there is a degree of reciprocity (give and take) required of occupiers of land in a communal living environment of this type. An owner of land of this type cannot reasonably expect to be unaffected by their neighbour's use of their own land.

111. The 'use' of the respondent Lot Owners Lot which is in issue is its use to smoke tobacco products (cigarettes). The nuisance alleged by the applicant Lot Owners is exposure to second-hand tobacco smoke.

112. It must be accepted that there is no safe level of exposure tobacco smoke. That fact is recognised in the Preamble and Article 8 of the World Health Organisation's Framework Convention on Tobacco Control 2003, to which Australia is a State Party, and it is elaborated in Principle 1 of the 'Statement of Principles and relevant definitions underlying protection from exposure to tobacco smoke' (2008), which has been developed as part of the implementation of that treaty. The potential harm of tobacco smoke drift, including in residential environments, such as strata schemes, is also recognised in both the Australian Government's currently in force National Tobacco Strategy (2012-2018), and its' draft prospective strategy (2022-2030) (see strategies 8.8 and 10.4 respectively). It has also achieved some legislative recognition in the Note that appears to s 153 of the Act, to which I may have regard in determining if cigarette smoke drift falls within the scope of the tort of private nuisance which is prohibited by that section. I also note that the serious health risk associated with exposure to tobacco smoke was accepted by the Tribunals as incontrovertible in Sheath at [19] to [22], in Bhandari v Laming at first instance (a finding not disturbed on Appeal), and in Gisks at [29].

113. I am satisfied that the applicant Lot Owners' diary is substantially accurate in its record of the times and dates on which they experienced cigarette smoke drift into their apartment. I am not persuaded by the respondent Lot Owners' evidence that the fact that they were not home at some of the recorded times, or that they never smoke at some of the recorded times of day means that this diary is unreliable or concocted. As I have already observed, a distinction is to be drawn between a smoke 'drift' event and a cigarette smoking event. Drift may not be contemporaneous with the smoking event because of the potential for smoke to become trapped and linger and to be absorbed by porous surfaces, such as carpets and rugs, furnishings, and soft furnishings. For these reasons, cigarette smoke may still be detectable some time, even a considerable time, after a smoking event.

114. That being so, it must be concluded on the diary entries and the applicant Lot Owners' witness evidence that their use and enjoyment of Unit 301 is very substantially affected by cigarette smoke emanating from Unit 201. This interference typically occurs on multiple occasions each day from the early morning to late evening. I accept the applicant Lot Owners' evidence that the cigarette smoke constitutes a foul odour, respiratory and eye irritant, and frequently results in headaches and cognitive dysfunction. It's carcinogenic properties also have the potential to cause far more serious physical harm which causes distress and anxiety.

115. I reject the respondent Lot Owners' contention that the "4 metre Law" proves that any smoke drift experienced by the applicant Lot Owners is incapable of harming them. As I have set out above, this reference appears to invoke the provisions of the Smoke-free Environment Act 2000 (NSW). The object of that Act is to promote public health by reducing exposure to (relevantly) tobacco smoke. It does so by designating enclosed public spaces as smoke free areas. The Act therefore has no direct application in the circumstances of this case (which relates to 'private' space), but even by analogy, it offers no real assistance to the respondent Lot Owners' case. The only reference to '4 metres' is found in s 6A(1)(i) which concerns pedestrian access points to a building excepting as set out in s 6A(2). A pedestrian access point is an area in which people are moving rather than situated for a continuing period (such as being at home). Any place at a public hospital is a smoke-free area (s 6A(1)(k)), and smoking is prohibited within 10 metres of children's play equipment, which is substantially more than the distance between the Unit 201 balcony and the interior of Unit 301. The various other smoke-free areas designated by s 6A(1) are public areas where people are likely to accumulate and stay for a time which indicates that Parliament considered there to be an unacceptable risk of harm from exposure to cigarette smoke in such locations in those circumstances.

116. I am satisfied that the applicant Lot Owners have taken reasonable steps to limit cigarette smoke drift into their Lot. Those steps are set out in the applicant Lot Owners emails to the respondent Lot Owners dated 5, 18 and 27 July 2021 and in Mr Pittman's Affidavit at paragraph 23 (paragraph 45 of these Reasons). Those efforts have been unsuccessful: smoke drift is still experienced despite these measures. In any event, I am satisfied from an objective point of view that these attempts unreasonably restrict the applicant Lot Owners in their use and enjoyment of their Lot. They live in a beachside apartment with exterior balconies with panoramic views. It is unreasonable that they are deprived of their use of the balconies to avoid cigarette smoke drift.

117. The respondent Lot Owners contend that cigarette smoking is 'not against the law' and that they are entitled to use their Unit, including its balcony, to do so, because that is what they enjoy. While cigarette smoking is not a crime, it is not correct to say that it is always not unlawful. As the Smoke-free Environment Act 2000 (NSW) makes clear they are various contexts in which smoking is made unlawful, and subject to civil penalty. Similarly, under the SSM Act it will be unlawful if it constitutes tortious conduct (that is, a civil wrong) in the form of private nuisance.

118. I am satisfied that the respondent Lot Owners' use of Unit 201 and particularly it's balcony to smoke cigarettes is a nuisance to the applicant Lot Owners in the circumstances of this case. That is, that it is tortious conduct and a civil wrong which is unlawful. For the reasons set out above it constitutes a substantial and unreasonable interference with the applicant Lot Owners use of Unit 301 to occupy as a home (and in Mr Pittman's case, formerly as a workplace). While communal living requires give and take, exposure to actual discomfort and disease and potential additional serious health risk is well beyond the reciprocity required of the applicant Lot Owners and permitted for the respondent Lot Owners having regard to contemporary notions of comfort and safety.

119. I am also satisfied on essentially the same bases as I have set out above with respect to nuisance that cigarette smoke drift from Unit 201 into Unit 301 constitutes a hazard contrary to s 153(a) of the Act. There is no safe level of exposure to second-hand tobacco smoke. It is a serious risk of harm. In this case the applicant Lot Owners have demonstrated in their evidence that they have already experienced a degree of harm to their health and well-being because of the smoke-drift. Additionally, there is the risk of more serious harm to their health from the carcinogenic properties of tobacco smoke.

1. Senior Member French revisited the question in Shaw v Euen [2023] NSWCATCD 68. Relying on several of the cases set out above, the Senior Member posed the same questions (at [44]), determining at [62]-[64] that (a) the respondent Lot Occupier's use of his lot "and particularly its' courtyard" to smoke cigarettes was a nuisance to the applicant Lot Owner in the circumstances of that case, which constituted a substantial and unreasonable interference with the applicant Lot Owner's use of his lot; (b) while communal living required give and take, exposure to actual discomfort and disease and potential additional serious health risk was "well beyond the reciprocity required of the applicant Lot Owner and permitted for the respondent Lot Occupier" having regard to contemporary notions of comfort and safety, finding that cigarette smoking on the lot was a contravention of the by-laws for that strata scheme; and (c) on essentially the same bases, cigarette smoke drift from one lot to the other constituted a hazard contrary to s 153(1)(a) of the Act, noting again:

"There is no safe level of exposure to second-hand tobacco smoke. It is a serious risk of harm."

1. I have given these precedent decisions, and the findings made in those cases on the impact of tobacco smoke drifts in multi-unit residential buildings, significant weight in coming to this decision.

Consideration - applying the law to the facts as found

1. Every owner of a lot in a strata scheme and every occupier of a lot in the scheme must comply with the prohibition in section 153(1)(a) of the SSM Act, against using or enjoying their lot (or permitting it to be used or enjoyed) in a manner or for a purpose that causes a nuisance or a hazard to the occupier of any other lot (whether that person is an owner or not).
2. Section 135(1) of the SSM Act further provides that every owner of a lot in a strata scheme and every occupier of a lot in the scheme must comply with the by-laws of the strata scheme:

... as if the by-laws--

(a) had been signed and sealed by the owners corporation and each owner and each such ... occupier, and

(b) contained mutual covenants to observe and perform all the provisions of the by-laws.

As noted immediately below that section, the effect of a person having been taken to have signed and sealed a by-law is that the person is always taken to have known about the by-law.

1. Mr Bailey is therefore not excused from complying with section 153(1) of the SSM Act or by-laws 5 and 9, regardless of whether he had any actual knowledge of the existence of that section or those by-laws.

On a dispute between two lot owners under by-law 9

1. By-law 9 establishes a strict obligation that applies to the owners and occupiers of any lot in this strata scheme, where tobacco or any other substance is smoked on the lot - regardless of whether it is smoked by the owner of the lot, the occupier of the lot, or by any invitee of the owner or occupier. Under that obligation, the owner or (if different) the occupier of the lot where tobacco or any other substance is smoked has a strict duty to positively "ensure that" the smoke that is caused by the smoking of tobacco or any other substance on the lot does not penetrate to the common property or any other lot.
2. The questions that the Tribunal must consider in determining whether a lot owner or occupier is in breach of by-law 9 are:

(1) Does (or did) the respondent lot owner cause or permit the use of their lot to smoke tobacco products?

(2) If the answer to (1) is "yes", does (or did) tobacco smoke caused by that use penetrate into either the common property or into another lot?

This question requires there to be a causal link between the smoking activity and any smoke that is or was detected outside the original lot, in order to establish that the owner or occupier of that lot has failed to take sufficient steps to "ensure" that the smoke from their lot did not penetrate into the common property or into another lot.

(3) If the answer to (3) is "yes", what remedy or remedies the applicant lot owner is entitled to under sections 232 and/or 241?

On a dispute between two lot owners under section 153(1)(a) and/or by-law 5

1. Section 153(1)(a) of the SSM Act applies to all lot owners and occupiers in all strata schemes across New South Wales. As I have set out above, by-law 5 in this case differs from clause 6 of the model by-laws. The addition of the words "or nuisance" within by-law 5 means that the issues relating to what is a "nuisance" under section 153(1)(a) are common to both provisions.
2. As noted in Marsh v Baxter, and Adams (discussed above), nuisance extends to non-physical damage to an occupier's use and enjoyment of land, including damage caused by air pollution, vibration, noise or dust, which is wide enough to include smoke pollution. In this vein, the Parliament has specifically noted at the end of the subsection that "the penetration of smoke from smoking into a lot ... may cause a nuisance or hazard and may interfere unreasonably with the use or enjoyment of the common property or another lot", depending upon the circumstances of the case.
3. There is, however, one key difference in the application of section 153(1)(a) and by-law 5, which arises from the use of the words "likely to" in the by-law. As described in the cases cited above, section 153(1)(a) prohibits the owner or occupier of a lot in the strata scheme from using or enjoying their lot in a manner that, as a matter of fact, causes an actual interference with the use or enjoyment of another lot (i.e., a nuisance) that is both substantial and unreasonable. By-law 5 casts its net in a wider, more generalised way, by prohibiting an owner or occupier of a lot in this strata scheme from creating, causing or allowing a nuisance on a lot or on the common property that is simply "likely to interfere with" the peaceful enjoyment or safety of the owner or occupier of another lot or of any person lawfully using common property, without the necessity of proving an actual interference.
4. Adopting Senior Member French's analysis in Pittman v Newport and in Shaw v Euen, and modifying the analysis to suit by-law 5, the Tribunal must consider the following issues in order to determine the matter on the nuisance and hazard grounds in section 153(1)(a) of the SSM Act or the extended nuisance ground in by-law 5:

(1) Does the respondent lot owner cause or permit the use of their lot to smoke tobacco products?

(2) If the answer to (1) is "yes", does tobacco smoke caused by that use penetrate into either the common property or into another lot?

(3) If the answer to (2) is "yes" does this penetration of tobacco smoke constitute either (a) a substantial and unreasonable interference with the applicant's ordinary use of his lot (so as to constitute a nuisance) and/or (b) a hazard, or (c) is it at least likely to interfere with the peaceful enjoyment or safety of the owner or occupier of another lot or of any person lawfully using common property?

(4) If the answer to (3) is "yes" what remedy/remedies is the applicant entitled to?

1. As can be seen, questions (1), (2) and (4) arising on this basis are essentially the same as questions (1)-(3) identified above in relation to by-law 9. Consequently, the three grounds raised by Mr Bowe can largely be dealt with together - to which I now turn.

(1) Does Mr Bailey cause or permit the use of Lot 6 to smoke tobacco products?

1. Yes. Mr Bailey admits that he smokes cigarettes on Lot 6 - saying that he usually does so while standing in the doorway between the living room and the northern courtyard of that lot, often while watching the television.
2. While that admission is enough to answer this question affirmatively, I am separately satisfied on the available evidence that Mr Bailey smokes tobacco products (cigarettes) at the property in more diverse ways than he has admitted. The evidence given by Mr Bowe, which I have accepted in preference to the evidence given by Mr Bailey for the reasons raised by Mr Bowe in his submissions, satisfies me on the balance of probabilities that Mr Bailey also smokes his tobacco in both the northern and southern courtyard areas of Lot 6 from time to time, and that he has done so regularly since moving into Lot 6.

(2) Does tobacco smoke caused by Mr Bailey smoking tobacco inside the area of Lot 6 penetrate into either the common property or into Lot 22?

1. Yes.
2. I agree with and adopt the analysis undertaken by Senior Member French in Pittman v Newport, as set out above, together with his conclusion at [101] (references omitted), that:

101. The reference material relied upon by the applicant Lot Owners (summarised at paragraphs 56 to 58 above) is compelling in its demonstration that even low levels of cigarettes use (1 cigarette) can be detected up to 9 metres away ... The interior of the applicant Lot Owners' Unit is well within that range. It also compellingly documents the propensity of cigarette smoke to 'permeate' the vicinity in which it is generated, including its ability to rise and spread ... and enter via gaps in doors, windows, cracks in walls, over balconies ... There can be no doubt having regard to this reference material that the applicant Lot Owners have established the capacity and mechanisms by which cigarette smoke drift enters their balcony and apartment from Unit 201.

1. The more recent reference material produced by Mr Bowe expands on that analysis, showing that (firstly) outdoor tobacco smoke levels are significantly greater than zero at 21 metres from the point of origin; (secondly) nicotine-based air pollution increases in homes and common areas located adjacent to areas where smoking occurs because cigarette smoke spreads easily via gaps indoors, windows, cracks in walls, balconies, and courtyards, as well as internal mechanical ventilation and air conditioning systems, elevator shafts, hallways, and stairwells; and (thirdly) residents living on higher floors in multi-level apartment buildings may be at risk of increased levels of second-hand smoke exposure, as smoke tends to accumulate at higher floors.
2. Just as Senior Member French was satisfied in Pittman v Newport and in Shaw v Euen, I am comfortably satisfied on the evidence before the Tribunal on this occasion that cigarette smoke is capable of - and does - rise from Lot 6 and enter Lot 22 after passing through the common property airspace immediately above the two Lot 6 courtyards. In coming to this conclusion, I am comfortably satisfied on the available evidence that:

(1) As was the case in Shaw v Euen, the courtyards of Lot 6 are unenclosed, and the balcony of Lot 22 is only partially enclosed.

(2) Lot 22 also has exterior windows on both the northern and southern sides of the lot which, if open, allow smoke to enter the internal areas of Lot 22 from outside.

(3) Both the windows and balcony of Lot 22 are in close vertical proximity to the Lot 6 courtyards. As set out above, the vertical distance between the outer perimeter of the Lot 6 airspace and the edge of the air space of Lot 22 (at its narrowest point is very small, at around 2-2.5 metres), and the distance between the floor of Lot 6 and the floor of Lot 22 is no more than 6 metres - well within the 9 metres that was mentioned in the research considered by Senior Member French in those earlier cases.

1. I accept Mr Bowe's evidence that the prevailing wind and breezes in the area of Lots 6 and 22 is generally obstructed by the eastern and western wings of the building, by the mature trees on the northern and southern sides of the building and by the overhanging parts of Lot 28. I am satisfied that this obstruction of those prevailing winds enables cigarette smoke from Lot 6 to drift upwards towards Lot 22 and to be trapped underneath the overhanging parts of Lot 28, permeating into Lot 22. This happens both on the northern side where the smoke drifts upwards from Lot 6 and accumulates in the airspace of the Lot 22 balcony, underneath the balcony of Lot 28, and on the southern side where the smoke drifts upwards from Lot 6 and accumulates underneath the Lot 28 floor slab in the area of the bedroom and bathroom windows on the southern side of Lot 22.
2. For essentially the same reasons as were given in Pittman v Newport and Shaw v Euen, I am satisfied that the tobacco smoke originating from Lot 6 enters the internal parts of Lot 22 through the balcony doors and through the kitchen windows on the northern side, and through the bedroom and bathroom windows on the southern side, and can become trapped in or linger for long periods inside Lot 22 before it ultimately disburses.
3. I am persuaded by Mr Bowe's evidence that smoke drifts from Lot 6 into Lot 22 of this nature are frequent. Firstly, the several hundred text messages sent by Mr Bailey to Mr Bowe over the 12 months before this hearing took place demonstrate that Mr Bailey smokes tobacco at Lot 6 an average of 1.6 times per day, and frequently no less than three or four times per day. Secondly, Mr Bowe was a credible witness who gave evidence under oath that was not challenged in any significant way. I believed his evidence. It was corroborated by his repeated contemporaneous complaints to the strata managing agent about smoke penetrating into Lot 22 and by his complaints to Mr Bailey about the issue over an extended period. Thirdly, there is no physical barrier within or around the edges of Lot 6 to prevent tobacco smoke originating from the courtyard or doorway areas of Lot 6 from leaving that lot and entering into (firstly) the open common property airspace around Lot 6 and (secondly) the open parts of Lot 22, which are very close to Lot 6.
4. I am not persuaded by Mr Bailey's submission that there are (or may be) other cigarette smokers in the strata scheme which could be the source of the cigarette smoke drift into Lot 22. As was the case in Shaw v Euen, Mr Bailey's submission was a bare assertion that was not corroborated by any satisfactory evidence. Further, on the evidence before the Tribunal, the only other known smokers in the vicinity of Lot 22 were in Lot 14, and they had all vacated those premises well before Mr Bowe filed his application (in the case of Craig), or in late March 2025 when the flooding incident occurred. Mr Bailey has not identified any other person or lot that could be the source of the tobacco smoke that Mr Bowe complains of.
5. Lastly, the evidence satisfies me that Mr Bailey did not take sufficient steps to ensure that his tobacco smoke did not escape from Lot 6 and penetrate into either Lot 22 or the adjacent common property airspace. A simple strategy that was open to Mr Bailey to allow him to exercise the right to smoke tobacco within his property whilst also complying with his obligation under by-law 9 would have been for him (or his invitees, if any) to only smoke tobacco inside the apartment at Lot 6 with the doors and windows of the apartment closed. That would have prevented most (if not all) of the tobacco smoke from escaping from Lot 6, but I can only conclude on the available evidence - including Mr Bailey's own admissions - that he did not take any steps of that nature. To the contrary, Mr Bailey's evidence was that he smoked his cigarettes while standing in the open doorway of Lot 6 - which continued to allow the smoke from his cigarettes to escape from his lot and to penetrate into Lot 22 and the common property around Lot 6.
6. The text message notifications that Mr Bailey gave Mr Bowe since the proceeding began did not address the escape of tobacco smoke from Lot 6 to those other places. To the contrary, they only served to give Mr Bowe a short amount of time (if he was home) to close up the internal parts of Lot 22 in an attempt to minimise the impact of Mr Bailey's cigarette smoke on Mr Bowe and his lot once it had left Lot 6. In essence, the messages simply passed the responsibility of dealing with Mr Bailey's tobacco smoke from Mr Bailey (who had the responsibility under by-law 9 to ensure that his tobacco smoke did not leave his lot) to Mr Bowe (who had no responsibility under by-law 9, but who was adversely affected by Mr Bailey's breach of that by-law and had to take steps to minimise those effects).

(3) Does Mr Bailey's use of Lot 6 to smoke tobacco products constitute either (a) a substantial and unreasonable interference with Mr Bowe's ordinary use of Lot 22 (nuisance); or (b) a hazard, or (c) is it at least likely to interfere with the peaceful enjoyment or safety of the owner or occupier of another lot or of any person lawfully using common property?

1. Yes.
2. As noted above, the properties in issue are lots within the one strata scheme. The strata scheme is again a residential apartment block located in a residential neighbourhood, and is a type of high-density communal living. Mr Bowe and Mr Bailey both use their lots as their homes. I agree that this requires a degree of reciprocity (give and take) between the parties, as the occupiers of land in a communal living environment, as to how each of them uses their respective lots. Mr Bowe therefore cannot reasonably expect to be completely unaffected by Mr Bailey's use of his own lot.
3. The nuisance and the hazard alleged by Mr Bowe is his lot's exposure, and his own exposure, to second-hand tobacco smoke caused by the smoking of tobacco on Mr Bailey's lot. I agree with Senior Member French's observation that it can hardly be considered "reasonable" for an owner or occupier, such as Mr Bailey, to engage in conduct that is contrary to either section 153 or by-law 5.
4. I accept Mr Bowe's evidence that when the tobacco smoke penetrates into Lot 22 from Lot 6: (1) Mr Bowe finds it difficult to breathe; (2) his eyes are irritated; (3) he develops a sore throat; (4) he can smell and taste the cigarette smoke, which affects his senses of taste and smell; (5) the smell of the tobacco lingers in his bedrooms, kitchen and living areas; and (6) he is unable to enjoy his home.
5. Further, the research evidence produced by Mr Bowe is consistent with and develops upon the material that Senior Member French considered in Pittman v Newport. After reading and considering that evidence for myself, I agree with Senior Member French's findings in that case that there is no safe level of exposure to tobacco smoke. I also adopt his findings at [51]ff that the carcinogenic properties of cigarette smoke also have the potential to cause more serious physical harm to a bystander, such as Mr Bowe. I therefore also agree with his conclusion that tobacco smoke is a hazard within the meaning of section 153(1)(a). As Senior Member French found, there is no safe level of exposure to second-hand tobacco smoke. It is a serious risk of harm.
6. Having regard to the frequency of Mr Bowe's complaints about cigarette smoke drifting into Lot 22 and the evidence that Mr Bailey frequently smokes tobacco in Lot 6, including in the courtyard I am separately satisfied that:

(1) Mr Bailey's use of Lot 6 - and particularly the courtyards and open doorways of Lot 6 - to smoke tobacco constitutes a nuisance within the meaning used in both section 153(1)(a) and by-law 5.

(2) The smoke which drifts from Lot 6 to the common property airspace and into Lot 22 when Mr Bailey or his invitees smokes tobacco on Lot 6 is at least likely to interfere with Mr Bowe's peaceful enjoyment or safety, as the owner or occupier of another lot or as person lawfully using common property, in breach of by-law 5.

(3) More specifically than that, Mr Bowe's use and enjoyment of Lot 22 is very substantially and unreasonably interfered with by the tobacco smoke which drifts from Lot 6 to the common property airspace and into Lot 22 from Mr Bailey's smoking activities.

1. In this way, I am satisfied that Mr Bowe's exposure to actual discomfort and to the potential additional serious health risk of passive smoke inhalation goes well beyond the reciprocity required of Mr Bowe and permitted for Mr Bailey, having regard to contemporary notions of comfort and safety.

1. As Mr Bowe has established that cigarette smoke drifts from Lot 6 into Lot 22 breaches section 153(1)(a) and both by-laws 5 and 9 of the strata scheme's by-laws, he is entitled to orders that will require Mr Bailey to prevent that drift from occurring. Consequently, it is appropriate to make orders that achieve that outcome.
2. Mr Bowe's amended application attached a draft short minute of order that proposed three similarly-worded orders that require Mr Bailey to comply with the obligations imposed on him by section 153(1)(a) of the SSM Act and by-laws 5 and 9(2) of the strata scheme, and that in particular Mr Bailey:

a. must not smoke tobacco products on the courtyards of his lot (Lot 6);

b. must not cause or permit any person to smoke tobacco products in the courtyards of his lot (Lot 6);

c. must not cause or permit smoke, fumes or odour of any tobacco product to be emitted from the interior of his lot (Lot 6) into the applicant Lot Owner's lot.

Those proposed orders borrow heavily from the orders that were made in Pittman v Newport. Save for his general denial of Mr Bowe's claim, which has not succeeded, Mr Bailey has not sought to cavil with the orders proposed by Mr Bowe.

1. In the absence of any specific argument to the contrary, and acknowledging their previous use by the Tribunal in Pittman v Newport, I am satisfied that the orders proposed by Mr Bowe are both reasonable and proportional, and that they are suitable to settle the dispute that has arisen in this case. The Tribunal will therefore make an order to give effect to that proposal.
2. Mr Bowe's short minute of order also contemplates the Tribunal making an order for costs in his favour. Cost orders were not specifically addressed at the hearing. In those circumstances, it is appropriate to leave the issue of costs open to be agitated between the parties, if either wishes to do so, with the parties to comply with a timetable for the making of any submissions on costs following the delivery of this decision.

1. Mr Bowe has succeeded in proving that cigarette smoke drifts from Lot 6 into Lot 22 are both a private nuisance and a hazard, and a breach of section 153 of the SSM Act and clauses 5 and 9 of the by-laws for the strata scheme.
2. For these reasons, the Tribunal makes the following orders:

(1) The Tribunal is satisfied that the second respondent owners corporation was notified of the hearing and had an opportunity to be heard at the hearing.

(2) The second respondent owners corporation did not appear at the hearing and the Tribunal considers it appropriate to deal with the matter in the absence of that respondent.

(3) Pursuant to sections 232(1)(a) and/or 241 of the Strata Schemes Management Act 2015 (NSW), the Tribunal orders the first respondent lot owner, James Washington Bailey, to comply with the obligations imposed on him by -

(a) section 153(1)(a) of that Act - to not use or enjoy the lot that he owns or occupies in strata scheme 60140, or permit that lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the applicant lot owner, Adam Bowe; and

(b) by-law 5 of strata plan no. 60140 - to not create, cause or allow any nuisance on the lot that he owns or occupies in strata scheme 60140 that is likely to interfere with the peaceful enjoyment of the applicant lot owner's lot in the strata scheme; and

(c) by-law 9(2) of strata plan no. 60140 - to ensure that smoke caused by the smoking of tobacco or any other substance by him or an occupier, or any of his invitees or an occupier's invitees does not penetrate to the applicant lot owner's lot; and

(d) to that intent, the first respondent lot owner, James Washington Bailey:

(i) must not smoke tobacco products on the courtyards or balconies of the lot that he owns or occupies in strata scheme 60140;

(ii) must not cause or permit any person to smoke tobacco products on the courtyards or balconies of that lot; and

(iii) must not cause or permit the smoke, fumes or odour of any tobacco product to be emitted from the interior of that lot into the applicant lot owner's lot.

(4) The application is otherwise dismissed.

(5) If any party wishes to seek an order for costs, then:

(a) That party (the "costs applicant") is to provide to the other parties (the "costs respondents") and to the Tribunal any application for costs setting out the costs order they contend for and any written submissions (strictly not exceeding 5 pages) setting out the reasons relied on for making that order, together with any other relevant documents or material, within the 7 days after the date this decision is issued to the parties.

(b) The costs respondents are to provide to the costs applicant and to the Tribunal written submissions in response (strictly not exceeding 5 pages) setting out the reasons relied on against making that proposed order, together with any other relevant documents or material, within the 14 days after the date this decision is issued to the parties.

(c) The Tribunal proposes to dispense with a hearing in relation to the application for costs under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW), with the intent that the costs issue will be determined on the papers. The parties are to include in their submission whether the application for costs can be adequately determined on the papers without the need for an oral hearing.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.