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Smoking, Pets & Strata Title

As more and more people are choosing to live in strata units and townhouses rather than on the traditional quarter acre block, how people interact and the nature of ‘neighbourhood disputes’ is also changing. Two recent decisions of the NSW Civil & Administrative Tribunal (NCAT) have considered the issues of smoking and pets within strata schemes. 

In the case of Gisks, the Tribunal considered a dispute which arose from smoking within a strata scheme.  It was noted that whilst smoking is legal and there is no legislation preventing a home owner from smoking within their own home, under the Strata Schemes Management Act an owner must not cause a nuisance or hazard to another owner. The Tribunal found that smoke drift was a nuisance and hazard and Orders were therefore made preventing the offending owner from smoking on her balcony and requiring her to close her windows when smoking inside.

In the case of Roden, the Tribunal considered the validity of a by-law which imposed a blanket ban on pet ownership.  Under the Strata Schemes Management Act, a by-law can be challenged on the basis that it is harsh, unconscionable or oppressive. The Tribunal found that the by-law was oppressive as it did not reflect a balanced consideration of all owners’ interests and there was no mechanism for an owner under any circumstances to keep any animal as a pet. It also followed an earlier decision which held that such a by-law against pet ownership is contrary to an owner’s basic habitation rights and the use and enjoyment of their lot. 

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