Smoking on Balconies in Strata: How NCAT and Tribunals Are Banning It Across Australia

Smoking on Balconies in Strata: How NCAT and Tribunals Are Banning It Across Australia

Cigarette smoke does not respect property boundaries. It drifts. It enters neighbouring apartments through windows, through air conditioning intakes, under doors, through bathroom exhaust ducts. It saturates fabrics, accumulates on hard surfaces, and creates measurable health risks for non-smoking neighbours. In a free-standing house, this is a problem the smoker contains within their own property. In a strata building, it is one of the most common — and increasingly, one of the most legally consequential — sources of dispute.

Until recently, owners corporations had limited tools to address smoking complaints. The general view was that what happened inside a lot, including on its balcony, was the smoker's business. That view has changed substantially in the last decade, and a series of recent NCAT, QCAT and VCAT decisions have made clear that smoking which causes drift into neighbouring apartments is a nuisance — and is enforceable as one.

This article walks through the legal framework, the leading decisions, the by-law options available to owners corporations, and the practical steps for both affected residents and committees in 2026.

The Legal Position: Smoke as a Nuisance

The starting point is that strata legislation across Australia prohibits an owner or occupier from using their lot in a way that causes a nuisance or hazard to another occupier. In NSW, this is section 153 of the Strata Schemes Management Act 2015. In Victoria, the equivalent is in the model rules under the Owners Corporations Act 2006. In Queensland, it is built into the BCCM Act and the standard by-laws.

Whether smoking constitutes a nuisance depends on the facts. Smoking that occurs occasionally, with no measurable drift to neighbouring apartments, is unlikely to meet the threshold. Smoking that produces persistent drift into a neighbouring apartment — particularly into bedrooms, living areas or via air conditioning systems — has been found by Tribunals to be a nuisance.

The question is no longer whether smoking can be a nuisance, but whether the particular pattern of smoking complained of meets the threshold in the particular case. The recent decisions have settled the principle. The factual analysis remains case-specific.

Leading Decisions

A series of decisions from the early 2020s onwards have shaped the current position.

In Pittman v Newport (NCAT, 2020), the Tribunal ordered a smoker to cease smoking on his balcony where the smoke was drifting into a neighbouring apartment causing health and amenity issues for the affected occupants. The decision was significant for confirming that the Tribunal had power to make such an order, and for setting out the type of evidence that would support the finding.

In Shaw v Euen (NCAT, 2022), the Tribunal made similar orders against a smoker whose conduct caused persistent drift into the neighbouring apartment. The decision developed the Pittman principles and addressed evidentiary questions about what is required to establish drift.

In a 2023 QCAT decision (the names of the parties withheld in the published reasons for privacy reasons), the Tribunal ordered a body corporate to enforce its no-smoking by-law against a resident whose smoking on a balcony was affecting an asthmatic neighbour. The decision was notable for confirming that body corporates have a positive obligation to enforce their own by-laws — a passive position is not legally available where the by-law has been breached.

VCAT decisions have followed similar reasoning, although Victoria's framework gives owners corporations slightly more latitude in by-law drafting and enforcement.

The cumulative effect of these decisions is that a resident who smokes in a way that causes persistent drift to a neighbouring apartment is exposed to a Tribunal order requiring them to stop, and an OC that fails to enforce a no-smoking by-law is exposed to a complaint about its enforcement conduct.

By-Law Options for Owners Corporations

Owners corporations have several options for addressing smoking through by-laws, ranging from least to most restrictive.

Smoke drift by-law. The most defensible option is a by-law that prohibits smoking in a manner that causes drift to other lots or to common property. This is enforceable under the existing nuisance framework, sits comfortably within the OC's by-law-making power, and addresses the actual harm without prohibiting smoking outright.

Designated smoking area by-law. A more proactive option is a by-law that prohibits smoking on common property except in a designated smoking area, typically located at a distance from windows, balconies and air intakes. This is widely used in larger schemes and has been broadly accepted by Tribunals.

No smoking on common property by-law. A blanket prohibition on smoking anywhere on common property — including foyers, gardens, pool areas, and external common areas. This is on solid legal ground, since the OC unambiguously controls the use of common property.

No smoking on balconies by-law. A prohibition on smoking on balconies, even though balconies are often part of the lot. This is more legally complex because it regulates conduct on lot property, but it has been upheld where the by-law is properly drafted, addresses a genuine nuisance, and is supported by adequate evidence of drift between apartments. The High Court's 2023 decision in Cooper (concerning pet by-laws) limited the scope of blanket lot-based prohibitions, but a smoking by-law that addresses genuine nuisance is materially different from a blanket pet ban.

No smoking inside lots by-law. The most restrictive option, prohibiting smoking inside the apartment itself. This is the most legally vulnerable, as it regulates conduct entirely within the lot. Tribunals have been more cautious about upholding by-laws of this scope, and they are difficult to enforce in practice.

The right level of by-law depends on the building. A new building with no existing smokers, where the special resolution can be passed cleanly, may sensibly adopt the most restrictive option. An older building with several long-term smokers may need to start with the smoke drift by-law and escalate only if the smoke drift problem persists.

What Affected Residents Can Do

For residents affected by smoke drift, the practical pathway begins with documentation.

Records of when the smoke is detected, in which rooms, for how long, and what its effect is on the affected occupants — particularly any health effects — are the foundation of any claim. Photos of cigarette butts on common property, video of smoke drifting, statements from any visitors who have witnessed the issue, and (where relevant) medical reports documenting health impacts all support the case.

The second step is informal communication. A direct, polite conversation with the smoking neighbour resolves a substantial proportion of cases — particularly where the smoker has not realised that their smoking is detectable in the affected apartment. A note pushed under the door is sometimes effective. The conversation should be documented (date, content, response).

The third step is formal complaint to the strata manager and the committee, requesting that the OC enforce the relevant nuisance provision (and any specific smoking by-law) against the offending resident. The complaint should attach the documentation, identify the legal basis, and request a specific response.

The fourth step is mediation through the relevant agency — Fair Trading in NSW, Consumer Affairs Victoria, the BCCM Commissioner in Queensland.

The fifth step is a Tribunal application seeking orders that the resident cease the smoking, that the OC enforce its by-laws, and (if appropriate) that compensation be paid.

The sixth step, available where there is direct health impact, is a complaint to the relevant tenancy or human rights body — particularly in jurisdictions where smoke exposure has been treated as a discrimination issue for residents with respiratory conditions.

What Committees Should Be Doing

For owners corporations, the practical agenda is straightforward.

If the building does not have a smoking by-law, consider whether one is needed. Buildings with high apartment density, shared balcony walls, or complaints already on file are particularly exposed.

If the building does have a smoking by-law, ensure that it is being enforced consistently. A by-law that exists on paper but is not enforced creates legal exposure when an affected resident files a complaint about non-enforcement.

When complaints are received, treat them seriously and respond promptly. The pattern that gets owners corporations into trouble is the dismissive "smoking is the smoker's right" response. The legal position no longer supports that view, and committees that take it expose themselves to enforcement complaints.

Consider whether the building's ventilation systems are contributing to the problem. In some older buildings, the original design of bathroom and kitchen exhausts means that smoke from one apartment is mechanically distributed to others. Where this is the case, the OC may have a positive obligation to address the ventilation issue — a common property matter — rather than relying purely on enforcement against individual smokers.

The State-by-State Picture

The framework is broadly consistent, with some variation in by-law drafting flexibility and enforcement procedure.

How UnitBuddy Helps

UnitBuddy's by-law and complaints module logs every smoking complaint with date, location, affected residents, and supporting evidence, and tracks the OC's enforcement response over time. The system surfaces complaint patterns — repeated incidents involving the same resident, complaints clustered around particular ventilation systems, complaints that the OC has not responded to — and produces the documentary record that supports either Tribunal applications or enforcement defence.

For committees, the platform converts a fragmented complaint history into a clear record of who complained, when, what was alleged, what the OC did, and what the outcome was — the foundation of consistent and defensible by-law enforcement.

Smoke drift is one of the oldest sources of strata dispute. The law that governs it has shifted decisively in favour of affected residents over the past decade. The buildings that get this right in 2026 are those that have a sensible by-law, enforce it consistently, and treat complaints as the legal matters they are — not as preferences to be balanced.