People living in apartments are much more likely to experience secondhand smoke wafting into their homes and across shared areas. It’s an issue that can divide neighbours and leave strata managers overwhelmed.
Apartment residents need sensible smoking regulations that balance personal freedoms in the home and public health interests. Newly published research shows the law is letting them down.
Sharing the air
Residents are right to be concerned. For three decades we’ve known that secondhand smoke increases the risks of lung cancer and heart disease in adults; asthma and breathing problems in children; and SIDS in babies.
In higher-density housing, tobacco smoke is notoriously difficult to contain – and there is no known safe level of exposure.
Despite the harms of secondhand smoke, only New South Wales tackles the issue of smoking in its strata law. In all other Australian jurisdictions, residents and owners are left confused about their rights and responsibilities.
Neighbours at war
In many cases, people in strata-titled properties who are affected by smoke have to prove it is a legal nuisance or hazard before any action can be taken.
However, case law from courts and tribunals reveals an awkward tension between the legal concept of “nuisance” and the science on the harms of secondhand smoke.
In one Queensland case, a man wanted to stop smoke infiltrating his bedroom from his neighbour’s balcony as this made him unwell.
Although the tribunal accepted that smoke often entered his bedroom, he was found to have an “abnormal sensitivity”. Nuisance could only be established if the smoke was of such volume or frequency that it was an unreasonable interference. And this was to be determined objectively through the prism of an ordinary, healthy person.
But what is a reasonable standard of exposure to secondhand smoke when no safe level has been established?
Originally Published by The Conversation, continue reading here.