Sol Residences Kirra Beach [2025] QBCCMCmr 437 (5 December 2025)

Body Corporate Sol Residences Kirra (first respondent)

Anthony Lawless, Joanne Lawless (second respondents)

SMOKING - whether the occupiers of a lot are causing a nuisance or hazard or are otherwise in contravention of by-laws by smoking on their lot.

REASONABLENESS - whether the committee acted reasonably in refusing to issue contravention notices pursuant to a formal request from the applicant, in relation to smoking.

[1] This application is brought against the body corporate by an occupier of Lot 405 in the scheme, and follows the applicant's unsuccessful bid for interim orders in Sol Residences Kirra Beach [2025] QBCCMCmr 197.
[2] The applicant says neighbours in the scheme, the Second Respondents, are causing cigarette smoke to drift into the lot the applicant occupies. They argue the neighbours are contravening the scheme's by-laws and sections of the Act that concerns nuisances, hazards and impacts to peaceful enjoyment of the scheme by other occupiers.
[3] The applicant asked the body corporate to issue a by-law contravention notice against the neighbours. The body corporate refused.
[4] The applicant seeks orders to overturn the body corporate's refusal, on the basis the body corporate has acted unreasonably.
[5] The applicant also seeks several orders against their neighbours that would confirm they have breached the by-laws and Act by causing smoke to drift into the lot the applicant occupies. The applicant also wants orders that would stop the Second Respondents from smoking on their lot entirely.
[6] I have dismissed the application, as:
1. I am not satisfied that the Second Respondents are responsible for the cause of the smoke emissions impacting the lot the applicant occupies, in circumstances where:
  1. There are photographs and submissions from other occupiers confirming there are other places, nearby the lot, where smoking takes place.
  2. The committee conducted a survey, where no responses supported the suggestion that smoke drift was a problem or was emanating from the Second Respondents' lot.
  3. The report from the wind engineer the applicant relies upon does not forensically examine whether the smoke is in fact emanating from the Second Respondents' lot, nor does it eliminate the possibility of other causes.
2. I am therefore also not satisfied that the body corporate has acted unreasonably in refusing to issue a contravention notice against the Second Respondents.

[7] The applicant is an occupier of Lot 405, and brings this application against the body corporate and the owner occupiers of Lot 205.

[8] The scheme is a building format plan subdivision of 47 lots and common property. The survey plans show it is a tower-style building with balconies and courtyards forming part of lots.
[9] The community management statement (CMS) shows the Accommodation Module applies. I note a new CMS was lodged during the determination of this dispute. However, there has been no change to the by-laws relevant to this dispute.

[10] On or around 23 January and 12 February 2025, the body corporate wrote to the owners of Lot 205 regarding the alleged breach of the by-laws concerning nuisance and hazards due to smoking.[1] The current committee submit this took place while the original owner was in control of the body corporate.
[11] On or around 5 May 2025, the applicant asked the body corporate, now controlled by a committee of lot owners or their representatives, to give the owners of Lot 205 a contravention notice, via the approved form (Form 1). [2]
[12] The Form 1 argued that the owners of Lot 205 were in breach of the following by-laws:

2.2 Occupiers must not behave in a matter likely to interfere with the peaceful enjoyment of other Occupiers. > > 5.3 Lots must not be used or allowed to be used: > > (a) for any purpose that may cause a nuisance or hazard; > > (b) in any manner likely to interfere with the peaceful enjoyment of other Occupiers...

[13] The Form 1 also made reference to By-law 10.1(b), however misquoted same. The applicant may have meant to say 10.1(g).
[14] The committee investigated the matter further by writing to the occupiers of 10 nearby lots, asking those occupiers to communicate any observations around smoke entering those lots (Occupier Survey). The three responses received stated:
1. One occupier is very sensitive to scents, and while they have at times noticed cigarette smoke, they have not been able to detect anyone smoking on scheme land.
2. One occupier said they have not experienced any smoke, despite spending a lot of time on their balcony.
3. The occupiers of Lot 305 says that they are retired, often home and have only noticed smoke on two occasions, but nothing recently. They make no comment on where the smoke emanated from.
[15] On or around 19 May 2025, the committee considered the Form 1 request via a vote outside of committee meeting process.[3] The motion was defeated (Disputed Committee Decision).

[16] The applicant previously sought interim orders. However, in that application, the only named respondent was the body corporate.
[17] In that application, the following interim order was sought:

1. That the Body Corporate issue a temporary Form 11 to the owners and occupiers of Lot 205 and that, if the owners and occupiers and/or the invitees and guests of Lot 205 breach the Form 11 notice, the Body Corporate immediately commence proceedings against the owners and occupiers of Lot 205 in the Magistrates Court.

[18] I dismissed the interim application in Sol Residences Kirra Beach [2025] QBCCMCmr 197, because:
1. I was not satisfied the applicant has raised a prima facie case for two of the three final orders sought, when those sought orders are against persons who were not named respondents.
2. The balance of convenience does not justify the interim order where its nature would finally determine a substantive issue in the final application which has not yet been proven, and would remove the need for the only remaining final order.

[19] In this application for final orders, the applicant has listed multiple respondents - the body corporate and the owner occupiers of Lot 205.
[20] The applicant seeks the following final orders:

1. an order that Motion 9 "Lot 205 Form 11" of the Vote Outside Committee Meeting by the Members of the Committee which was recently defeated be overturned from "Defeated" to "Approved"... > > 2. an order that the owners and occupiers of Lot 205 are in breach of the Sol By-laws and Section 167 of BCCM Act. > > 3. an order that the owners/occupiers of Lot 205 permanently cease smoking on or in their Lot 205 at any future time and that they ensure that the guests and invitees of Lot 205 do not smoke on or in Lot 205; and > > 4. an order that the owner/occupiers of Lot 205 to ensure that, if they or their guests or invitees wish to smoke, they use the convenient private entrance stairs of Lot 205 down to Garrick Street footpath (a public place) where they can smoke legally, which would eliminate my complaint against smoking with or with out Lot 205's use of obnoxious cigarette-smoke-masking fragranced product...

[21] All owners were invited to make submissions on the application. Submissions were received from the respondents, being both the body corporate and the owners of Lot 205. Submissions were also received from owners of 7 lots.
[22] Five of the lot owner submissions generally support the application. One lot owner writes that they have visited the lot the applicant occupies and has experienced the second-hand smoke complained of. However, none of these submissions offer evidence regarding where the smoke originated.
[23] The other lot owners who oppose the application say they either have not encountered any smoke drift, or where they have, can either not identify where the smoke had come from or suggest it has emanated from outside of the scheme land, citing witnessing smoking in other surrounding buildings and popular smoking areas on council land near the lot the applicant occupies.
[24] The applicant provided a reply to the above submissions.

[25] The applicant argues that, should I decline to make the final orders sought, my decision would be in breach of the Human Rights Act 2019 (Qld) (HR Act). More specifically, section 24, which is concerned with all persons having the right to own property, and not being arbitrarily deprived of their property.
[26] The HR Act generally applies to decisions of a court or tribunal, Parliament or a public entity (which is a defined term).[4] The HR Act has slightly different impacts on each of those types of decision makers.
[27] The applicant submits that an adjudicator falls into the definition of a public entity. It is unlawful for a public entity to act or make a decision that is not compatible with human rights or, in making a decision, to fail to give proper consideration to a human right relevant to the decision.[5]
[28] The Queensland Civil and Administrative Tribunal has recently considered whether the HR Act applies in this way to decisions of adjudicators. QCAT determined the HR Act did not apply to adjudicator decisions because it was not a function of a public nature, as adjudicators are deciding disputes of a private nature between parties.[6]
[29] I will however comment that this application does pertain to rights regarding enjoyment of property. However, there are competing interests here - the applicant says their rights to enjoy the property will be impacted if I do not make the order, however, the Second Respondents' right to enjoy their property would be impacted if I do. These are not decisions that I make lightly.

[30] The applicant has not argued the application of The Tobacco and Other Smoking Products Act 1998 (Qld) (Tobacco Act), however, as it has some relevance to smoking in community titles schemes, so I will make brief comment.
[31] Section 112 of the Tobacco Act prohibits smoking in certain enclosed places. In a community titles scheme, the prohibition can apply to enclosed 'common areas'.[7]
[32] Most notably, there is nothing in the Tobacco Act that expressly prohibits a lot owner smoking within their lot, whether or not it is enclosed.[8] In this scheme, the balconies and courtyards form part of the lot and are not common property.

[33] Submissions indicate confusion as to whether by-laws may limit smoking within a scheme. I will make brief comment.
[34] Section 169A of the Act contemplates and provides for the recording of a by-law to prohibit or restrict using smoking products[9] on all or part of the common property that are not subject to exclusive use, and on an outdoor area of a lot or common property that is subject to exclusive use.[10]
[35] The scheme's By-law 14.4(f) appears to restrict the use of cigarettes on common property. It is not disputed that the Second Respondents smoke on their balcony, and previously smoked in their courtyard. However, the survey plans depict courtyards and balconies as forming part of lots, not common property.
[36] Some submissions requested for me to amend the by-laws. That is not what I am called to do in this application. It is open to owners to propose to the body corporate a by-law contemplated by section 169A themselves, via the required processes,[11] if they so wish.
[37] Nevertheless, other by-laws may still apply to smoking in these areas indirectly, such as by-laws that relate to nuisances or hazards.

3.4. Nuisance, hazard and unreasonable interference

[38] Section 167 of the Act relates to nuisances and other similar behaviours on scheme land, and has formed a basis for many disputes about smoking in community titles schemes.
[39] The section reads as follows:

_(1) The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that - _ > > (a) causes a nuisance or hazard; or > > (b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or > > (c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property. > > _(2) Without limiting subsection (1), the occupier contravenes this section if - _ > > (a) the occupier regularly uses, or regularly permits an invitee to use, a smoking product on the lot or the common property of the scheme; and > > _(b) an occupier of another lot or an invitee of the occupier of the other lot, or a person who is lawfully on the common property, is regularly exposed to the smoke or emission from the smoking product - _ > > > (i) in the other lot; or > > > > (ii) on the common property.

3.4.1. Concept of nuisance and unreasonable interference

[40] In relation to subsection (1), QCAT has summarised what may be considered a 'nuisance', and what may be considered an 'unreasonable interference':
1. The term 'nuisance' in section 167(1)(a) of the Act carries the common law meaning of private nuisance.
2. The phrase 'interferes unreasonably' in section 167(1)(b) of the Act is to be construed according to the normal meaning of the words.
3. The test for 'nuisance' requires a substantial degree of interference according to what are considered reasonable standards for the enjoyment of those premises.
4. The test for 'unreasonable interference' does not involve any notion of substantiality.
5. The test for 'nuisance' and 'unreasonable interference' is objective.[12]
[41] Markedly, if something is a nuisance, it will also be unreasonable interference. However, not all unreasonable interference will be a nuisance. Interference that is not substantial might be unreasonable if, for example, it had no other purpose than to annoy.[13]
[42] Whether smoking was a nuisance was considered by QCAT Norbury v Hogan,[14] and it was stated:

In residential areas, the cases show, the principle of 'give and take, live and let live' is customarily applied so that the 'ordinary and accustomed use' of a premises will not be considered a nuisance, even if some inconvenience to a neighbour is caused.[15]

What is considered unreasonable depends on the prevailing circumstances in each case but the nuisance... needs to be an inconvenience that materially interferes with the ordinary notions of a 'plain and sober' person, and not merely the 'elegant or dainty' habits of the complainant.[16]

[44] It was noted that smoking on your own property was a lawful activity,[17] and that while the complainant in that matter was particularly sensitive to the smoke, as the test is an objective one, nuisance was not established.[18]
[45] There have now been several decisions of adjudicators where smoking was found to not constitute nuisance or unreasonable interference.[19]

[46] However, subsection (1)(a) also provides for hazards. Hazard is a non-technical term, and relates to situations with a potential for harm which has not yet occurred.[20]
[47] The issue of smoking in a community titles scheme (referred to as a strata scheme) was considered by the New South Wales Commercial and Administrative Tribunal (NCAT). It was said that:

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. > > ... > > The inhalation of second-hand smoke is a hazard. It is adjudged as such by public health legislation.[21]

[48] In Artique [2021] QBCCMCmr 596, the adjudicator considered whether smoking can constitute a hazard for the purposes of section 167. The adjudicator found that, while the applicant did not suffer regular exposure to the smoke from the respondent's cigarettes,[22] second-hand smoke is a hazard in that it presents a serious risk of harm, with no safe level of exposure.[23] Therefore, the smoking did contravene the hazard provision of section 167.

[49] Following the unsuccessful cases of second-hand smoke not meeting the test of 'nuisance' and 'unreasonable interference' at law,[24] subsection (2) was incorporated into the Act in 2023.[25] The key elements needed to establish a contravention of the subsection is that there is regular use of a smoking product, and another person is regularly exposed to the smoke from that smoking product.
[50] Subsection (2) expressly states that it does not limit subsection (1). It follows that, where second-hand smoke drift may not be captured by subsection (2) because, for example, it may not be regular, it may still be captured by the hazard provision in subsection (1), where regularity may not be a consideration.
[51] Following the introduction of subsection (2), orders have been justified without reference to the amendment. Rather, intervention has continued to be justified as a 'hazard' under subsection (1).[26]

3.4.4. Whether section 167 has been contravened

[52] The materials in front of me give some credibility to the claim that smoke emissions enter the lot the applicant occupies. Those materials include:
1. The applicant's statements of what they are experiencing.
2. A submission from another lot owner who visited the lot the applicant occupies and says they have noticed cigarette smoke.[27]
[53] The applicant also relies on a log spanning about 2 months, recording when the applicant's handheld vape detector altered to 'particulate matter' in the air (Applicant's Log). The numbers given are poorly explained. My concerns extend to the handheld vape detector itself. It says that it is 'extremely sensitive'. Whether that would align with an objective test of nuisance isn't clear, although I note it is arguable its findings could constitute a hazard. Nevertheless, however, the specification sheet for the device says it alerts to 'particulate matter', and says it will alert to dust and car exhaust. It follows that the Applicant's Log may not be reliable evidence of tobacco emissions.
[54] Those issues aside, the rub lies in relation to the origin of the smoke or emissions. To justify the orders sought, I need to be satisfied that the Second Respondents are responsible for any alleged smoke emissions that enter the lot the applicant occupies.
[55] When considering to what extent the applicant needs to satisfy me that the final orders sought are justified, the following passage from Briginshaw v Briginshaw provides guidance, with emphasis added:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.__[28]

[56] I am cognisant that the sought orders would have the extraordinary effect of not allowing the Second Respondents to smoke upon their own property under any circumstances, even indoors.[29] Smoking in your own home is not a criminal activity, and is arguably ordinary use of one's own property.
[57] The Second Respondents have acknowledged at least one of them smokes, but there is no information on how regularly this takes place.
[58] Most notably, the Second Respondents argue that they are not the cause of the smoke the applicant is experiencing, and notes that they are away for work 11 hours of the day during weekdays. Rather, they say there are several other causes of smoke near the lot the applicant occupies, being occupiers of other nearby neighbouring properties, and an area of council land where people smoke. This information is verified by way of:
1. The Second Respondent's claim that they have heard the applicant's vape detector device alert when no one was smoking on their lot.
2. Photographs, provided in the committee's submissions.
3. Submissions from owners who say they witness smoking in those other areas, and one lot occupier saying any smoke they have experienced has emanated from the street below.
[59] The applicant also relies on a report from a wind engineer dated 15 April 2025 (MER Report). I do not find the MER Report particularly compelling, insofar as evidencing that the Second Respondents are responsible for the cause of the smoke.
[60] The MER Report is largely speculative, and does not forensically investigate where the smoke originates. Rather, the report appears to start with the premise that the smoke is originating from the Second Respondents' lot, and merely explains how that smoke may travel from there to the lot the applicant occupies. The writer did not attend the scheme, and the diagrams are difficult to make out and are not of the building in question.. However, and most significantly, the report does not address the likelihood of the smoke emanating from other areas.
[61] The report says that south to southeast winds will transport fumes form lower elevations to higher apartments The Applicant's Log does not include times, and there is nothing in front of me to confirm the direction the wind was moving when smoke was detected in the lot the applicant occupies. Therefore, it can still be difficult to say the smoke is emanating from the Second Respondents' lot even if I found the MER Report more compelling, as wind direction plays a factor in that report.
[62] More doubt is raised in the Occupier Survey, where the occupier of Lot 305 (on Level B), which is situated immediately between the Second Respondents' Lot 205 (Level C) and the applicant's Lot 405 (Level D), has reported their lot has not been impacted by smoke emissions.
[63] Ultimately, for the purpose of this application and based on the information in front of me, I am not reasonably satisfied that the Second Respondents are the source of the smoke emissions impacting the lot the applicant occupies.

[64] The applicant also relies on the scheme's by-laws.
[65] There is a prescribed process that must be followed before by-law enforcement can be pursued through adjudication.[30] This includes the applicant providing the body corporate with the Form 1.[31] I am satisfied this has taken place for by-laws 2.2 and 5.3 (but not 10.1b). I am also satisfied that the body corporate did not advise the applicant that a contravention notice was issued,[32] and therefore the applicant is able to seek such orders through adjudication.
[66] By-law 2.2 is worded in a similar fashion to section 167(1)(b), and By-law 5.3(a) is worded in a similar fashion to section 167(1).
[67] As I have not been satisfied that the Second Respondents are the cause of the smoke emissions for the purpose of section 167, it follows that I am not satisfied that the by-laws have been contravened.
[68] It also follows that there can be no criticism of the body corporate's decision to not act on the applicant's Form 1. Nevertheless and for the avoidance of any doubt, I confirm I am not satisfied the body corporate acted unreasonably in that decision.[33] Acting reasonably in decision making involves considering all relevant factors, and disregarding irrelevant ones.[34] I find the Occupier Survey, the evidence of other people smoking in the area, and the fact that the Applicant's Log did not detail times of wind movement are all relevant factors the committee was able to consider, and that it was reasonably open to the body corporate to decide against issuing a contravention notice.

[69] I have not been reasonably satisfied that the Second Respondents are responsible for the smoke emissions that have entered the lot the applicant occupies, nor that the body corporate acted unreasonably in its refusal to issue a contravention notice to the Second Respondents. The application must fail.

[1] Whether these letters amounted to contravention notices under section 183 of the Act is not immediately apparent, but nevertheless does not need to be determined in this application.

[6] Huang v Body Corporate for the Dorchester CTS 10749 [2024] QCATA 64 [79].

[8] See the residential premises exception Tobacco and Other Smoking Products Act 1998 (Qld) s 112 (2)(a).

[9] Which is a defined term in the Tobacco and Other Smoking Products Act 1998 (Qld).

[11] For more information, see https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/by-laws/making-by-laws or contact the Commissioner's information service by phone or online.

[12] Miles & Anor v Body Corporate for Solarus Residential Community Titles & Ors [2016] QCATA 130 at [39].

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

[14] Norbury v Hogan [2010] QCATA 27.

[15] Norbury v Hogan [2010] QCATA 27 at [17], citing Bamford v Turnley (1862) 122 ER 27 at 32-33; Clarey v The Principal and Council of the Women's College [1953] HCA 58; (1953) 90 CLR 170.

[16] Norbury v Hogan [2010] QCATA 27 at [14], citing Walter v Selfe [1851] EngR 335; (1851) 64 ER 849 at [851].

[17] Norbury v Hogan [2010] QCATA 27 at [27].

[18] Norbury v Hogan [2010] QCATA 27 at [31].

[19] See, for example, Sun Crest [2010] QBCCMCmr 524; Admiralty Towers [2011] QBCCMCmr 264; Carson Place [2012] QBCCMCmr 503.

[20] Mirana Investments Pty Ltd and Ors v Coupe [2012] QCATA 187 at [48].

[21] Bill Sheath and Rhonda Sheath v Rick Whitley and Sandra Whitley [2014] NSWCATCD 44, at [19, 22].

[26] Regency Place South [2024] QBCCMCmr 138; Georgina Views [2024] QBCCMCme 357;

Champelli Palms [2024] QBCCMCmr 347;

[28] Briginshaw v Briginshaw [1938] HCA 34 at [362] per Dixon J.

[29] The applicant takes the position that, once doors and windows are opened after smoking indoors, the smoke would enter the applicant's lot.

[31] This is the approved form referenced in Act, s 185(2)(a).

[33] The body corporate and its committee must act reasonably. See Act, ss 94(2), 100(5).

[34] Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [42] citing McKinnon v Department of Treasury [2006] HCA 45; (2006) 228 CLR 423, 430.

Corporate and Community Management Act 1997

Corporate and Community Management (Accommodation Module) Regulation 2020

Other Smoking Products Act 1998

Sol Residences Kirra Beach [2025] QBCCMCmr 437 (5 December 2025)

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (69 paragraphs)

Sol Residences Kirra Beach [2025] QBCCMCmr 437 (5 December 2025)

Legislation Cited (4)

Cases Cited (2)