Cumulus [2025] QBCCMCmr 454 (15 December 2025)

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

NUISANCE; HAZARD - whether cooking fumes from a barbeque and deep fat fryer on a balcony are causing a nuisance or hazard in contravention of the Act and by-laws; whether the respondents must moderate their outdoor cooking.

Act, ss 167, 280.

• [1] Ms Hardwick of lot 7 lives directly above Mr Murphy and Ms Boschen in lot 2. She says smoke and odours from the barbeque and deep fat fryer on their balcony frequently enter her home, aggravating her sinuses and asthma. She characterises it as a nuisance and hazard, contrary to by-law 2(a) and section 167 of the Act.
• [2] Ms Hardwick seeks orders in the following terms:

1. An Order for costs - for both the Conciliation fee, and the Adjudication fee. > > 2. An Order that the Occupiers of Lot 2/Unit 50 moderate their outdoor cooking, particularly the use of a deep fryer, to prevent further nuisance and uphold communal living standards... > > 3. An Order that the Occupiers of Lot 2/Unit 50 reduce the frequency of outdoor cooking activities from multiple times per week to a more considerate rate, being a couple of times per week...

(a) An Occupier must not use, or permit the use of, a Lot or the Common Property in a way that:

(i) Causes a nuisance or hazard;

(ii) Interferes unreasonably with the use and enjoyment of another Lot;

(iii) Interferes unreasonably with the use or enjoyment of the Common Property; or

(iv) Causes smoke drift of any kind which interferes with the use and enjoyment of another Lot.

167 Nuisances > > _(1) The occupier of a lot included in a community titles scheme must not use, permit the use of, the lot or the common property in a way that - _ > > (a) causes a nuisance or hazard; or

(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

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

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

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

(i) in the other lot; or

(ii) on the common property.

• [5] A barbeque or deep fat fryer is not a "smoking product", so section 167(2) of the Act does not apply.[1]
• [6] To constitute a breach of by-law 2 or section 167(1) of the Act, the use of the barbeque or fryer must be causing:
  1. a nuisance
  2. unreasonable interference with the use of another lot or the common property
  3. a hazard, or
  4. smoke drift of any kind that interferes with the use and enjoyment of another lot.
• [7] A nuisance is a substantial and unreasonable interference with the use and enjoyment of land.[2] That overlaps with section 167(1)(b) of the Act, which concerns interference that is unreasonable but might not be substantial.[3] The unreasonableness of the interference is to be assessed with reference to reasonable standards for the enjoyment of the premises, such that an ordinary use of a premises will not be considered a nuisance even though it might interfere with or inconvenience other occupiers.[4]
• [8] Cooking is an ordinary use of a domestic premises. Cooking outdoors is also quite ordinary in Queensland. I could only see it being characterised as unreasonable if something about the nature, frequency, or duration of the outdoor cooking clearly removed it from the norm and exacerbated its impact upon others.
• [9] Ms Hardwick claims Mr Murphy and Ms Boschen are cooking on their balcony five or six times per week and at any time of day. She submitted a diary in support of these claims.
• [10] Mr Murphy and Ms Boschen deny that they cook outside so frequently. They say it has been once or twice a week since Ms Hardwick approached them with her concerns in March/April 2024. Of 54 occasions in Ms Hardwick's diary, they say:
  1. 34 are incorrect
  2. 8 are correct, and
  3. they are unsure about 12 others.
• [11] Ms Hardwick submitted no evidence in support of her claims aside from her own diary and correspondence. They indicate that Ms Hardwick has frequently felt troubled by odours within her home, but they do not clearly or objectively establish the source of those odours.
• [12] Ms Anderson from lot 5, also above lot 2 and named as an affected party in Ms Hardwick's application, did not take a position for or against the application. She commented that the barbeque and fryer used to create "a level of odour that was intrusive and not bearable", but she said Mr Murphy and Ms Boschen do not cook outside so often now.
• [13] No other owner made a submission, notwithstanding that lot 3 is adjacent to lot 2 with a balcony on the same side, and there are several stories of lots above lots 5 and 7 that face the same direction and have their balconies above lot 2's (albeit, higher up).
• [14] That is insufficient to establish that Mr Murphy and Ms Boschen's outdoor cooking goes beyond reasonable standards and could legally be considered a nuisance or unreasonable interference with the use of a lot. That is true even if it aggravates Ms Hardwick's asthma and sinusitis, as "nuisance is not established because the complainant is abnormally sensitive".[5]
• [15] To argue hazard, Ms Hardwick refers to research by the United States' National Oceanic and Atmospheric Administration that found that volatile organic compounds (VOCs) from cooking made up some 21% of the total human-caused VOCs in Las Vegas' air (a city with 666 restaurants per 100,000 people).[6] However, that does not seem to tell us much about the likely concentration of VOCs in fumes from a lone barbeque or fryer in Brisbane, the proportion of those VOCs that end up in lot 7, whether that level is likely to be harmful, nor whether the situation would be improved if Mr Murphy and Ms Boschen cooked inside instead.
• [16] Ms Hardwick also says:

Is cooking smoke carcinogenic? > > Several studies have demonstrated that mutagens and carcinogens are released by fumes from heated cooking oils, using the Ames assay or SOS chromotest. > > *Lot 2/Unit 50 makes regular use of a deep fryer (and BBQ) when cooking outside in their courtyard area. > > Is BBQ carcinogenic? > > Grilling meat, poultry or fish with intense heat or open flames can lead to formation of potential cancer-causing compounds (carcinogens). Two problematic compounds are: Heterocyclic amines (HCAs): These form when muscle proteins in meat, poultry and fish react with high heat.

• [17] No sources are cited in support of these claims. It is not clear that the second statement relates to airborne carcinogens in any event. But even if these statements are accurate, they do not establish that a harmful concentration of hazardous substances is likely to be entering lot 7 due to lot 2's outdoor cooking. Perhaps the barbeque and fryer are not run hot enough to generate these harmful substances. Or maybe they are but the mutagens and carcinogens do not enter lot 7, or enter in such low concentrations that they do not pose a risk to human health. Perhaps the same would occur if the cooking was done indoors and the fumes left the building via an extraction fan. The information as cited is too general to provide much assistance in the specific circumstances under consideration.
• [18] Ms Hardwick refers to Pittman v Newport in New South Wales' Civil and Administrative Tribunal, in which Senior Member French found smoking 20-40 cigarettes per day on a lot balcony caused a nuisance and hazard. The member was satisfied that the smoke was entering another owner's lot, and that "there is no safe level of exposure to tobacco smoke".[7]
• [19] But in the present matter the frequency and volume of cooking fumes entering lot 7 is unclear. There is also not the same weight of evidence that cooking fumes pose a hazard. I have been referred to nothing to substantiate a conclusion that there is no safe level of exposure to cooking fumes. If that conclusion could be reached, I am not sure where it would leave us. People cannot avoid cooking in the same way that they can choose not to smoke.
• [20] While by-law 2 includes a sweeping prohibition of "smoke drift of any kind", it is not clear that lot 2's outdoor cooking is creating smoke. Mr Murphy and Ms Boschen say their barbeque uses gas and they cook with the lid closed, producing no visible smoke. They say they have not used their deep fat fryer outside since July 2025. While Ms Hardwick originally complained to the body corporate of smoke drift from lot 2, she subsequently retracted that and substituted "odour", implicitly acknowledging that the fumes may not be smoke. In these circumstances I cannot be satisfied of a contravention of by-law 2(a)(iv).
• [21] I am not persuaded that Mr Murphy and Ms Boschen are in breach of by-law 2 or section 167 of the Act. Consequently, I will not make orders 2 and 3.
• [22] I could still order reimbursement of Ms Hardwick's conciliation and adjudication application fees though. I may make that order where a respondent fails to participate in conciliation without reasonable excuse.[8] A certificate signed by a conciliator on 1 September 2025 stated:

I have referred your application back to the commissioner because our office was unable to establish contact with the respondents. Therefore, I consider the respondents did not make a reasonable attempt to participate in conciliation.

• [23] Mr Murphy says a change to his email address meant that he did not receive the invitation to participate in conciliation. I have been given no reason to disbelieve that claim.
• [24] I will not penalise the respondents in those circumstances. If they did not receive the conciliation invitation, it was not unreasonable not to participate.
• [25] The application is dismissed in its entirety.

[1] Tobacco and Other Smoking Products Act 1998, Schedule 1.

[2] Quinn v The Body Corporate of Sanctuary Bay CTS 6523 [2013] QCATA 25 at [5]; Norbury v Hogan [2010] QCATA 27 at [13].

[3] Miles & Anor v Gough & Ors [2017] QCA 190 at [13].

[4] Norbury v Hogan, supra fn 2 at [15]-[17].

[6] Those delicious smells may be impacting air quality, NOAA Research, https://research.noaa.gov/those-delicious-smells-may-be-impacting-air-quality/ accessed 12 December 2025.

[7] Pittman v Newport [2022] NSWCATCD 173 at [112].