Disputes between neighbours about dividing fences are common across New South Wales, particularly where there is disagreement about responsibility or cost of fencing work, or alleged damage, and in cases where years have gone by and the fence has become dilapidated. While emotions often run high in these situations, the legal position is more measured and structured than many expect. 

What is often a simple matter, can become very complex because of the way neighbours react and deal with the dispute.

Understanding the Dividing Fences Act 1991 (NSW)

The starting point is the Dividing Fences Act 1991 (NSW) (Act), which sets out the framework for determining when a sufficient dividing fence is required. What constitutes a “sufficient dividing fence”, and how costs are to be shared, is not always straightforward.

Common Points of Contention and Alleged Damage

A frequent point of contention arises where one neighbour alleges that the other has damaged an existing fence (for example, there is a tree on the neighbour’s property that has damaged the fence) and then that neighbour proceeds to issue a fencing notice seeking contribution for replacement or repair.

Sometimes, a fencing notice is not even served on the other neighbour. It is often assumed that proving fault will entitle the aggrieved neighbour to recover more than the usual 50% contribution to fencing works. However, that is not necessarily the case.

What is a ‘Sufficient Dividing Fence’?

Whether a fence is a “sufficient dividing fence” under the Act depends on a range of factors including the nature of the land, its use, and the character of the locality. The condition of the existing fence is only one part of that assessment.

Where damage is alleged, does that automatically translate into a greater financial obligation on the other neighbour? The question remains whether the fence, in its current state, meets the statutory standard of a sufficient dividing fence and if not, what contribution is reasonable in the circumstances if costs are to be incurred for fencing works.

The Importance of Statutory Procedure

Equally important is the process. The Act requires that neighbours follow certain procedures before carrying out fencing work, including the service of a valid fencing notice and allowing time for agreement to be reached.

Except in genuinely urgent situations, a neighbour who proceeds to carry out fencing work without first complying with these requirements may find it difficult to recover any contribution at all from the other neighbour for the cost of the work, regardless of the merits of their position.

Practical Implications for Neighbours

In practical terms, this means that acting too quickly can undermine an otherwise reasonable claim. Conversely, responding carefully and in accordance with the Act can place a party in a stronger position, whether they are seeking contribution or resisting it.

Fencing disputes often involve a mix of legal, practical, and interpersonal considerations. Whether you are taking an active role in seeking to replace or repair a fence, or responding to a notice from your neighbour, it is important to understand both your rights and your obligations under the legislation.

Expert Advice for Fencing Disputes

Whether you are on the offence or defence, in a dispute and require assistance navigating the process, we can provide clear and practical advice. Do not be caught on the fence.

Have a Fencing Dispute? For Practical Expert Advice Click Here

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For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

As Sydney’s residential landscape shifts rapidly towards high-rise and high-density communities, the dynamics between neighbours are becoming increasingly volatile. Strata properties, the backbone of this urban shift, are now witnessing a complex surge in internal disputes, creating challenging governance and compliance issues for owners corporations and residents alike.

There has been a marked increase in the frequency and complexity of conflicts requiring expert legal intervention. The once-minor irritations of apartment living are now regularly escalating into formal legal challenges that demand the clarity and authority of specialist strata advice.

The Strata Dispute Dilemma

The statistics paint a clear picture of the strata environment and the escalating need for professional guidance:

•  Conflict is Compounding: We are seeing an 11% increase* in mediation requests, signalling that internal resolution mechanisms are failing more frequently and pushing residents toward formal legal pathways.
• Mediation’s Crucial but Imperfect Role: While 67% of disputes were successfully resolved through mandatory mediation, this success still leaves a significant portion of complex cases unresolved.
• The Tribunal Treadmill: A high number of unresolved issues are escalating to the NSW Civil and Administrative Tribunal (NCAT), where the process becomes more formal, time-consuming, and expensive.

As population density rises, these disputes—often involving complex by-law interpretation and emotional homeowner issues—are only expected to grow.

Why Disputes Go Beyond the Fence Line

What makes strata disputes so challenging? They often involve a unique blend of technical law, financial obligation, and deeply personal neighbourly friction. Key areas of contention include:

• By-Law Breaches: Unauthorised pets, noise complaints, and misuse of common property such as parking or storage.
• Common Property Upgrades: Disagreements over renovations, such as air conditioning units, that may require owners corporation approval and affect external appearances or common property structure.
• Financial & Governance Issues: Disputes over levies, maintenance responsibilities, and the conduct of strata committee members.

The key to resolving these matters is understanding that they require a strategic, legally informed approach that goes beyond simply having a chat with your neighbour.

When you Need Specialist Strata Dispute Advice

While the NSW government is working on reforms to reduce mediation wait times, waiting is simply not an option when your peace of mind or investment is at stake.

At JS Mueller & Co Strata Lawyers, we specialise exclusively in NSW Strata Law. Our deep knowledge and decades of experience mean we don’t just understand the law; we understand the dynamics of strata disputes. We provide clear, practical legal advice tailored to resolve your conflict efficiently, whether you are an owners corporation, a strata committee member, or a lot owner.

How Can Specialist Strata Dispute Advice Help?

1. Strategic Mediation Preparation: Maximising your position and outcome at the mandatory Fair Trading mediation to secure a resolution and avoid NCAT.
2. Expert By-Law Enforcement & Defence: Applying unmatched expertise to breach notices, compliance orders, and by-law interpretations for noise, pets, and common property use.
3. Fierce NCAT Advocacy: Providing clear, authoritative representation if your matter needs to escalate to the Tribunal, ensuring your rights and interests are robustly defended.

Neighbourly disagreements erode the quality of life and directly threaten the value of your strata asset. Whether you are facing a persistent strata dispute involving pets, renovations, common property use, or something else, you need a specialist advantage.

To gain the expert legal insight required to navigate and resolve your dispute swiftly and effectively contact our specialist team below, we’re always happy to help.

CONSULT OUR STRATA DISPUTE EXPERTS NOW

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, disputes, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

* NSW Government, Fair Trading

The heat is on. Summer is here and it’s predicted to be a hot summer season with temperatures in the high 30’s and some days even reaching 40’s.

It’s the time of year when lot owners and tenants look to install and use air conditioners to relieve themselves from the oppressive heat.

Did you know air conditioners are high on the list for strata disputes?

Air conditioners can cause all types of complaints in strata such as:

• What if the noise of the unit upsets the peace and quiet?
• Who’s responsible for maintenance?
• What if the unit leaks water into another apartment?
• Is it in line with the appearance of the lot?
• and much more!

A Robust By-law Addressing Air Conditioning Units is Important

For these reasons it’s important that you have a good by-law in place regulating the installation and use of them  that covers the following (and much more):

• What type of air conditioning equipment is appropriate?
• Where can the unit be installed?
• Will council approval be required?
• Will owners corporation approval be required?
• Will it be installed on common property?
• Will a by-law be required for individual lots, or can it be covered under a general by-law?

A good by-law will ensure that your summer is as stress free as possible and reduces (and hopefully eliminates) any strata disputes in relation to air conditioners.

IS YOUR STRATA AIR CONDITIONING BY-LAW UP-TO-DATE? REVIEW IT NOW.

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, disputes, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

The orthodox view is that an owners corporation is solely responsible for carrying out repairs and maintenance to common property and that individual owners are not entitled to perform their own repairs to common property.  However, a recent Supreme Court case has cast doubt on that orthodox view. So is an individual owner entitled to carry out repairs to common property? And if so, in what circumstances?

Common Property Repairs

An owners corporation has a statutory duty to maintain and repair the common property throughout its building. This is a compulsory duty that is imposed on the owners corporation under section 106 of the Strata Schemes Management Act 2015. There are very limited circumstances in which an owners corporation can be relieved from its duty to repair common property. This has led to the orthodox view that it is only the owners corporation that is entitled to carry out repairs to common property.

Common Property Repairs by Lot Owners

But can an individual owner carry out repairs to common property? And in what circumstances can an owner do so? Typically, an owner will be entitled to carry out repairs to the common property if there is a by-law which imposes on that owner the responsibility for performing those repairs. This is often the case when a common property rights by-law gives an owner the exclusive use of an area of common property such as a courtyard adjacent to his or her lot and imposes on the owner the responsibility for the maintenance and repair of that area. But what rights does an owner have to carry out repairs to common property that is not covered by a by-law?

Going it Alone

Section 111 of the Strata Schemes Management Act 2015 says that an owner must not carry out work on common property without proper authorisation. This typically means that an owner must apply for and obtain the permission of the owners corporation to carry out repairs to the common property. But what if an owner cannot wait to obtain that permission or that permission is not forthcoming? Can the owner take matters into his or her own hands and carry out work to repair the common property anyway?

Take the fairly common example of defective waterproofing on common property that causes water to leak into and cause damage to a lot over a period of time. Rather than remain idle and wait for the owners corporation to repair the waterproofing defects whilst allowing her lot to become inundated with water, can the owner carry out the repair herself without having to wait for the owners corporation to approve that work? And can the owner recover the cost of the work from the owners corporation?

Recent Case

In Colman v The Owners – Strata Plan 61131 [2025] NSWSC 63, an owner replaced common property tiles and waterproofing on a terrace area adjacent to his lot without the permission of the owners corporation. The owner applied to NCAT for an order to approve of that work and to recover the cost of that work from the owners corporation.  The owner was unsuccessful. The owner appealed to the Supreme Court and lost.

However, the Supreme Court made some interesting remarks about the right of an owner to unilaterally carry out repairs to the common property and recover the cost of those repairs from the owners corporation. The Court concluded that, relevantly:

• an owners corporation itself could retrospectively approve repairs already undertaken to the common property by an owner;
• NCAT could retrospectively approve repairs to the common property undertaken by an owner without the consent of the owners corporation;
• However, NCAT could not retrospectively approve those repairs if the owner did not first seek the owners corporation’s approval for the repairs,
• an owners corporation could be taken to have refused to grant approval for an owner to carry out repairs to the common property even if no formal decision is made by it to do so (where there is a delay in making that decision);
• an owner cannot recover from the owners corporation the cost of carrying out repairs to the common property that have not been approved by either the owners corporation or NCAT;
• there is an open question as to whether an owner can recover from an owners corporation as damages the cost to carry out repairs to the common property where those repairs are approved by either the owners corporation or NCAT.

The Wash Up

The Colman case raises some doubts about the orthodox view that owners cannot do work to the common property and recover the cost of that work from an owners corporation. The case also provides a potential alternative pathway for owners who are faced with a recalcitrant owners corporation where the owners corporation simply fails or refuses to fix defects in the common property that affect the owner’s lot. That alternative pathway allows the owner to take matters into his or her own hands, determine the nature and scope of the repairs that need to be done to the common property, apply to the owners corporation for permission to proceed with those repairs and, if that permission is refused (through an actual or constructive refusal), either:

• apply to NCAT for permission to perform the repairs and an order to be reimbursed by the owners corporation for the cost of those repairs, and then proceed with those repairs; or
• perform the repairs and then apply to NCAT for retrospective approval of the repairs and an order to require the owners corporation to compensate the owner for the cost of the repairs.

Conclusion

It remains to be seen whether owners, out of a sense of frustration, desperation or otherwise, choose to run the gauntlet and take the alternative path that Colman suggests might be available to them.

COMMON PROPERTY STRATA DISPUTES – SPEAK TO THE STRATA EXPERTS

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, disputes, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Can an owners corporation deliberately decide not to repair an item of common property? If so, what criteria must be satisfied before the owners corporation can validly make that decision? In a relatively recent case, NCAT’s Appeal Panel provided guidance on that issue.

Duty to Repair Common Property

An owners corporation has a duty to repair all of the common property in its strata scheme under section 106(1) of the Strata Schemes Management Act 2015 (Act).  This duty is compulsory, not optional.  The duty is also a strict one.  This means that the owners corporation must immediately fix any defects in the common property, not take reasonable steps to do so.

Consequences of a breach of duty

The consequences for an owners corporation breaching its duty to repair common property can be serious. Any owner who is affected by the breach of duty can apply to NCAT for orders to force the owners corporation to carry out repairs to the common property and pay compensation to the owner to cover any reasonably foreseeable loss the owner suffers because of the breach of duty. There have been numerous cases in which NCAT has awarded owners substantial amounts of compensation as a result of an owners corporation’s failure to repair defects in common property. The compensation awarded by NCAT to owners has included rental loss, alternate accommodation expenses, cleaning costs, costs to repair damaged lot property, experts’ fees and legal costs. Those amounts can be awarded to an owner as damages under section 106(5) of the Act.

Exemption from the Duty to Repair Common Property

Given the serious consequences for an owners corporation that fails to repair common property, the question that arises is whether an owners corporation can legally, deliberately decide not to repair an item of common property. The answer to that question is “yes”.

Section 106(3) of the Act allows an owners corporation to pass a special resolution at a general meeting to deliberately decide that it will not maintain or repair a particular item of common property.  But there are some criteria that must be met in order for the owners corporation’s decision to be a valid one. First, the owners corporation must determine, when making its decision, that the decision will not affect the safety of, or detract from the appearance of, any property in the strata scheme. Second, there must not be any by-law in place that makes the owners corporation responsible for the maintenance or repair of the particular item of common property.

Where the owners corporation makes a decision, by special resolution, not to maintain or repair a particular item of common property, in compliance with those criteria, section 106(3) of the Act operates to exempt the owners corporation from its strict duty to repair the item of common property.

Can a Decision Not to Repair Common Property be Challenged?

A decision made by an owners corporation not to repair a particular item of common property can be challenged by an aggrieved owner.  However, the grounds for that challenge are limited. An owner can apply to NCAT for an order to set aside or overturn the decision where, for example, the owners corporation did not consider, when making its decision, whether the decision would affect the safety of the building or detract from its appearance or where the decision is unreasonable or is made for an improper purpose (e.g. a fraud on the minority) or where the owners corporation fails to take into account a relevant consideration or takes into account irrelevant considerations when making the decision.

The Case

Morrison v Neighbourhood Association DP No. 285032 [2024] NSWCATAP 18 concerned a decision by a Neighbourhood Association to decide, by special resolution, that it would not maintain and repair a trotting track on neighbourhood property. That decision was made under the equivalent provision in the community schemes legislation to section 106(3) of the Act. Mr and Mrs Morrison were lot owners in the neighbourhood scheme and they were aggrieved by the Neighbourhood Association’s decision. They applied to NCAT for orders to force the Neighbourhood Association to do work to maintain and repair the trotting track.

Mr and Mrs Morison were unsuccessful and they appealed against NCAT’s decision.  Their appeal was dismissed. The Appeal Panel observed that once the Neighbourhood Association had made the decision, by special resolution, not to maintain or repair the trotting track, and that decision was made in accordance with the requirements of the equivalent provision to section 106(3) of the Act, that relieved the Neighbourhood Association from its duty to maintain and repair the trotting track.

Importantly, the Appeal Panel held that because Mr and Mrs Morrison did not seek to challenge or set aside the special resolution the Neighbourhood Association had passed to determine not to maintain or repair the trotting track, there was no basis for NCAT to order the Neighbourhood Association to do so.

What is also important is the Appeal Panel’s decision that in order to satisfy the criteria in the equivalent to section 106(3) of the Act that the decision not to maintain or repair an item of common property will not affect the safety or detract from the appearance of the scheme, all the Association needed to do was consider those issues and determine, by special resolution, when making its decision, that the decision would not affect the safety or detract from the appearance of the scheme. The Appeal Panel said that there was no basis for NCAT to embark on an inquiry to determine whether or not, as a matter of fact, it was correct for the Association to determine that its decision would not affect safety or appearance of the scheme. This means that the grounds for an owner to challenge a decision by an owners corporation or association not to maintain or repair an item of common property are extremely limited.

Conclusion

The Morrison case confirms that an owners corporation or association has a broad power to decide not to maintain and repair an item of common property and when it validly exercises that power, the duty to maintain or repair that item of property no longer applies, and it is difficult for an aggrieved owner to successfully challenge that decision. In practice, owners corporations rarely make determinations, by special resolution, not to maintain or repair specific items of common property. This is surprising given the strict nature of the duty to repair common property that is imposed on every owners corporation in New South Wales and the serious consequences that can arise for an owners corporation when that duty is breached.

CLICK HERE FOR ADVISE ON COMMON PROPERTY STRATA DISPUTES

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

In a recent case, the Land and Environment Court has confirmed that an owners corporation can apply to the Court for orders to require trees on a neighboring property which obstruct views from residential lots in the owners corporation’s building to be removed or pruned.  The Court confirmed that the individual lot owners do not have to apply to the Court for that relief.

The Case

A row of 21 Cyprus trees grows on a property in Sydney’s lower North Shore adjacent to a strata building.  The foliage of those trees is relatively close to the windows of some of the apartments in that building.  They obstruct the views from, and sunlight entering, the windows from those apartments.  To remedy that problem, the owners corporation of the apartment building applied to the Land and Environment Court for orders to require the neighbor to remove 9 of the trees and prune 10 of the trees.  Those orders were sought under the Trees (Disputes between Neighbors) Act 2009.

The Problem

In the case, the neighbor argued that the owners corporation was not entitled to apply for any orders on behalf of the apartment owners concerning the trees.  This was because the trees did not obstruct any views or sunlight on the common property but only from the apartments themselves and the owners corporation did not own or manage the apartments as a result of which it did not have standing to apply for orders in relation to the trees.

The Decision

The Land and Environment Court rejected the neighbour’s argument.  The Court held that the land which adjoined the trees in question was common property that was owned by the owners corporation and as the owner of that land the owners corporation could apply for an order relating to an apartment situated on the land in its strata scheme.  The Court also said that the apartment owners or residents themselves could also apply to the Court for orders in relation to the trees.  The Court stressed that this case was different to cases under the Trees Act that relate to tree damage.  In those types of cases apartment owners could only apply to the Court for orders in relation to damage to their apartments and the owners corporation could only apply to the Court for orders relating to damage to common property.

Conclusion

The Court’s decision clarifies that an owners corporation is entitled to apply for relief under the Trees Act in relation to trees on a neighboring property that obstruct views or sunlight through windows in apartments.  The Court’s decision represents a departure from earlier decision of the Court in 2012 in Salmon v Kibble[2012] NSWLEC 1359 in which it was held that an owners corporation could not make an application to the Court and instead applications needed to be made by the owners of the individual apartments.

The case provides greater flexibility for tree disputes involving strata schemes to be resolved through applications that are made by owners corporations.

Case citation: The Owners – Strata Plan No. 52378 v Huang [2025] NSWLEC 1125.

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact US

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Back in 2018, NCAT decided that a landlord is not responsible for ensuring that his or her tenants comply with the by-laws that apply to a strata building.  That decision was confirmed by the Appeal Panel of NCAT in Feletti -v- Eales [2019] NSWCATAP 100.

Therefore, if a tenant is breaching a by-law, the owners corporation of the building is not normally entitled to take action against the landlord to require the landlord to ensure that his or her tenant complies with the by-law.

This means that the owners corporation needs to take action against the tenant instead of the landlord which it may not want to do because tenants come and go and it can be difficult to enforce NCAT orders against them.

How to Make Landlords Accountable for Tenants in Strata?

There is, however, a solution to the problem.

• An owners corporation can make a by-law that requires landlords to ensure that their tenants comply with the by-laws.
• That by-law will give the owners corporation the right to take action against a landlord when his or her tenants breach the by-laws.
• The by-law goes one step further and will also allow an owners corporation to take action against both landlords and tenants whose guests and invitees breach the by-laws.

Tenancy Laws are Changing in NSW in 2025

More recently the NSW Government has committed to ending ‘no grounds’ evictions. This means that the landlord will need a valid reason to end a tenancy, making it even more challenging for owners corporations if they’re a bad tenant – new laws are expected to be passed in 2025.

It’s now even more important that strata schemes consider introducing the following by-law to ensure a thriving and a well-run scheme.

We have drafted a by-law and a number of strata managers have introduced the by-law into the strata schemes they manage.

We expect that the by-law will prove very useful for owners corporations who introduce it because it will allow those owners corporations to take action against landlords whose tenants are breaching the by-laws.

ORDER YOUR BY-LAW NOW: ENFORCE LANDLORDS TO BE RESPONSIBLE FOR THEIR TENANTS

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

As of 1 July 2024, NSW (and ACT) became the first state in Australia to adopt new and modern defamation laws for the digital age.

Led by the NSW Government the changes in the Defamation Amendment Act 2023 (NSW) will improve the balance between freedom of speech and protection of reputation when someone publishes content through a digital intermediary.

Examples of digital intermediaries include:

• Social Media Platforms
• Review Websites
• Search Engines
• Content Hosts
• Service Providers
• Individuals and organisations who use online platforms to host forums inviting third-party comments (known as forum administrators).

Part A reforms include:

• two conditional statutory exemptions from defamation liability for a narrow group of digital intermediaries, including search engines in relation to organic search results (non-sponsored search results)
• a new innocent dissemination defence for digital intermediaries, subject to a simple complaints process
• empowering courts to order digital intermediaries to prevent access to defamatory content online, even when they are not parties to defamation proceedings
• requiring courts to consider safety, privacy and the public interest when making orders against digital intermediaries to provide the identity or contact details of a poster of online content

To read the full bill and other information including Stage 2 visit NSW Government.

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist

Restricting or Banning Smoking in Strata

As of 1 May 2024 body corporate’s in Queensland are permitted to introduce by-laws that specifically prohibit or restrict smoking or inhaling of smoking products on common property of strata buildings.

As Queensland grapples with these changes, in NSW there are still many buildings that do not have a by-law concerning smoking, even though they are permitted to do so. This has raised questions such as:

• Is it possible to stop people smoking in a strata building without a by-law that bans smoking?
• If it is possible to stop smoking without a by-law, is it still necessary or desirable to have a by-law that bans or restricts smoking and, if so, why?

Banning Smoking without a By-Law

Somewhat surprisingly, it is possible to stop residents of a strata building smoking in their lots or on common property without a specific by-law that prohibits smoking.  Section 153 of the Strata Schemes Management Act 2015 prohibits residents from using or enjoying their lots in a manner or for a purpose that causes a nuisance or hazard to another resident. There have been several cases over the past years in which NCAT has made orders prohibiting residents in strata buildings from smoking on the basis that smoke caused by smoking constituted a nuisance to other residents in contravention of section 153.

NCAT Smoking Cases

In May 2019, a lot owner, Martin Gisks, succeeded in obtaining an order from NCAT prohibiting the resident of another lot in his building smoking on her balcony or in her bedrooms and requiring that resident to close all exterior doors and bedroom and bathroom windows when smoking inside her lot (Gisks v The Owners – Strata Plan No. 6743 [2019] NSWCATCD 44).

In October 2022, lot owners in a different building, Mr Pittman and Ms Cartwright, obtained orders from NCAT prohibiting the owners of another lot smoking or permitting any other person to smoke tobacco products on the balcony of their lot, and prohibiting them from permitting smoke from any tobacco product to be emitted from the interior of their lot into the lot of Mr Pittman and Ms Cartwright (Pittman v Newport [2022] NSWCATCD 173).

More recently, in June 2023, an owner in a strata building, Haydn Shaw, obtained an NCAT order prohibiting the owner and resident of another lot permitting the smoking of tobacco products in the courtyard of their lot (Shaw v Euen [2023] NSWCATCD 68).

In each case, NCAT concluded that the smoke caused by the smoking of cigarettes or tobacco products by residents constituted a nuisance which interfered with the amenity of other residents in contravention of section 153 of the Act.  It was on that basis that NCAT made orders prohibiting or restricting smoking in each of these cases.

Is a By-Law Banning Smoking Desirable?

These NCAT cases beg the obvious question:  does an owners corporation need to bother introducing a by-law prohibiting or restricting smoking?  The answer is “Yes” if the owners corporation wants to make it easier to ban or restrict smoking in its building.

This is because without a by-law that bans or restricts smoking:

• the owners corporation may not have standing to apply to NCAT for orders to prohibit residents smoking in a way that causes a nuisance to other residents because the owners corporation itself has not suffered from that nuisance (The Owners – Strata Plan No. 2245 v Veney [2020] NSWSC 134); and
• there is a need to prove that not only particular residents are smoking but also that the smoke from cigarettes or tobacco products has caused a nuisance to other residents by unreasonably and substantially interfering with the use and enjoyment of their lots (something which may be difficult to do).

In other words, if a by-law exists that bans smoking the owners corporation is able to enforce that by-law and to succeed it does not need to show that smoke from cigarettes constitutes a nuisance to other residents.  The owners corporation just needs to prove that particular residents are smoking in breach of the by-law.  That is much easier to do.

Conclusion

It is possible to stop residents smoking without a by-law that bans smoking.  However, it is much more difficult to do so because it requires proof that the smoking causes a nuisance to other residents.  And, there is real doubt that an owners corporation can apply to NCAT for an order to stop residents smoking in those circumstances.

Introducing a by-law prohibiting or restricting smoking overcomes those problems, gives the owners corporation the right to take steps through NCAT to prevent residents smoking and makes it easier for the owners corporation to win the case and put an end to smoking in its building.

DO YOU NEED A BY-LAW THAT PROHIBITS OR RESTRICTS SMOKING? CLICK HERE NOW!

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Who is Responsible for Common Property Repairs Caused by Rain?

Sydney smashes another record rainfall in May 2024 (to date) with a deluge of rain over the past weeks across metropolitan and regional areas of New South Wales.

Extensive rainfall events test the patience of every strata manager resulting in numerous complaints about water leaks into strata lots.

Faced with endless demands, owners corporations need to be very clear about their responsibilities, so it’s timely to revisit some of the “fundamentals”.

In the article below we discuss…

Step 1 – Is it the owners corporation’s responsibility?

Step 2 – If it leaks has the common property failed?

Step 3 – Are damages payable by the owners corporation for common property failures?

For more information: Rain and Common Property Damage – Who is Responsible?

Warwick van Ede I BEc LLM I Lawyer

Since 1990, Warwick has specialised in strata law, property law and litigation. Recognised for his expertise, he is also a NSW Law Society Accredited Specialist in Property Law. In 2021 he was selected to serve on the Property Law Committee of the Law Society of NSW. Profile I LinkedIn

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