A couple embroiled in a long-running battle over their neighbours smoking on their balcony are seeking a statewide ban on the drifting of cigarette smoke in multi-unit dwellings.
Brenton Pittman and Lynette Cartwright from Kingscliff in far north NSW can finally breathe a sigh of relief following their victory in the NSW Civil and Administrative Tribunal (NCAT).
Smokers who moved into the unit directly below the couple 18 months ago were ordered by NCAT in October to stop smoking on their balcony after it was successfully argued the smoke wafted into the apartment above them.
Experts have warned the outcome could set a dangerous precedent for residents living in units in the future.
Mr Pittman and his wife told the tribunal the cigarette smoke from Des Newport and Carmen Traynor’s unit four metres below wafted into their home through air vents, despite all doors and windows shut for 95 per cent of the day.
Brenton Pittman and Lynette Cartwright (pictured) can breathe a sigh of relief following their victory in the NSW Civil and Administrative Tribunal
The couple’s health suffered as a result, including irritated eyes, noses and throats, frequent sneezing, headaches, irritability, mood swings loss of concentration and insomnia.
Mr Pittman told Daily Mail Australia they spent months attempting to resolve the problem through ‘polite and diplomatic’ emails and mediation without success before the matter spent a year through the courts, including three tribunal proceedings.
The couple won the initial hearing a year ago and but then lost when the neighbours appealed the decision before the tribunal ruled again in their favour in October.
‘There is no safe level of exposure to second-hand tobacco smoke. It is a serious risk of harm,’ the judge’s decision stated.
‘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.
‘As the applicants have established that cigarette smoke drift is both a private nuisance and a hazard, they are entitled to orders that will require the respondents to prevent this from occurring.’
Mr Pittman and Ms Cartwright lived in Sydney for almost four decades and spent five years travelling across Australia before moving to Kingscliff in 2016 after buying their unit.
In 2015, NSW strata laws were amended to identify smoking as an activity that could create a ‘nuisance’ in a strata community.
Section 153 of the Strata Schemes Management Act 2015 states owner occupiers and tenants must not use or enjoy the lot in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot.
The couple said neighbours’ cigarette smoke drifting from the unit balcony below has impacted on their lives (stock image)
In late 2016, model by-laws were introduced where new buildings constructed from that date had laws relating to smoking and smoke drift on common property and lot.
Mr Pittman’s complex is among existing buildings that don’t have by-laws dealing with smoking or smoke drift, despite appeals to the strata body corporation to exercise them.
He’s now calling on the NSW government to close the loophole so laws regarding to cigarette smoking drift applies to all multi-unit dwellings.
‘It will be worthwhile if we can help prevent this happening to other people in NSW,’ Mr Pittman told Daily Mail Australia.
‘Many people don’t have the time, administrative skills or resources to fight it so they are forced to ‘suck it up’ or move out.’
‘We didn’t want to be in the position we’re in now as advocates but we hope others can use our story as a step by step guide.
‘I’m not against smoking but smokers need to be aware of the discomfort it can causes to others.’
He stressed he has no issues about cooking smells and use of barbecues on balconies which may also face potential bans.
Brenton Pittman and his wife Lynette (pictured) are seeking a statewide ban on the drifting of cigarette smoke
Mr Newport told the Sydney Morning Herald he was ‘a little sceptical about divulging [his] feelings in this matter as the prejudices against smokers are overwhelming’.
He now has to smoke in his second bathroom and is now is looking to sell.
Mr Newport doesn’t support a legislation ban but admits he wouldn’t be surprised if one was introduced.
Mr Pittman recently told strata lawyer Amanda Farmer on her Your Strata Property podcast the saga has taken an emotional toll on he and his wife and claimed the couple have been ostracised by other neighbours.
‘It’s probably worth it at this end of it, of just trying to allow the government an opportunity to just ban something that is so hard to fight, that everyone in this position would probably say, “I don’t want to be in this position”, and either they move out or they just put up with it,’ he explained.
‘And it’s something that shouldn’t be put up by anybody. I mean, people can do their own things, but you can’t impact on other people.’
The couple said cigarette smoke from the balcony below drifted into their home, despite all doors and windows shut for 95 per cent of the day (stock image)
Mr Pittman recently sent the strata manager a notice to comply to be issued to neighbours under the owners corporation.
‘If there’s something that’s been prohibited, the owners corporation’s got a responsibility to make sure that there’s no prohibited activity,’ he added.
‘Smoke drift we are receiving is in breach of that by-law that we’ve got there inhibiting a law to be broken. So we’ve asked for a notice to comply there, which then puts a responsibility back on our owners corporation to do something about it.’
Strata Communities Association President Stephen Brell feared the tribunal outcome could set a dangerous precedent for residents in units.
‘What my concern there would be is owners and owners corporation taking it a step further and doing things like trying to ban cooking smells and barbecues on balconies, that sort of thing,’ Mr Brell told 2GB.
He added individual strata blocks can set their own rules, known as bylaws, which must be followed and could only be challenged in a court of law.
‘If an owners corporation did pass a bylaw banning you from smoking in your lot, then by virtue of that you’d be banned from smoking on your balcony,’ he said.
The couple bought and moved into an apartment in Kingscliff in the NSW northern rivers (pictured) in 2016
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