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

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• Smoke drift is increasingly treated as a nuisance issue rather than a lifestyle disagreement.
• The winning evidence is practical: dates, airflow, medical impact, and attempts to resolve.
• Committees need by-laws that regulate harm without overreaching.

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.

For affected residents, the practical task is building evidence without turning the building into a feud. For committees, it is writing rules that can actually be enforced.

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. Western Australia words it differently: section 83 of the Strata Titles Act 1985 bars use of a lot or common property that "interferes unreasonably" with someone else's use or enjoyment. WA has its own section below.

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 [2022] NSWCATCD 173, the Tribunal ordered the respondent lot owners not to smoke or permit smoking on their balcony, and not to allow tobacco smoke from inside their lot to enter the applicants' apartment. The decision was significant for confirming that the Tribunal had power to make those orders and for showing the value of detailed evidence of repeated smoke drift.

In Shaw v Euen [2023] NSWCATCD 68, the Tribunal made a similar order after accepting that cigarette smoke entering a neighbouring lot contravened section 153. It ordered the respondents not to permit tobacco smoking in the courtyard of their lot.

Queensland's leading published decision is Artique [2021] QBCCMCmr 596. The adjudicator found that balcony smoke drift breached the scheme's smoking by-law and section 167 of the BCCM Act, prohibited the resident from smoking on the balcony, and required reasonable steps to stop smoke from elsewhere in the lot affecting neighbours. The reasons also reaffirmed that a body corporate must enforce its by-laws and act reasonably when doing so.

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 NSW Court of Appeal's decision in Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250 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. In WA, mediation happens through SAT after you apply.

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.

1. 01
   Log dates, rooms, drift, health impact
2. 02
   Polite conversation with the smoker
3. 03
   Formal complaint to OC and strata manager
4. 04
   Mediation via Fair Trading, BCCM or SAT
5. 05
   Tribunal application for cease orders
6. 06
   Health or discrimination complaint

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.

Western Australia: section 83, by-laws and SAT

In WA the owners corporation is the strata company, the committee is the strata council, and disputes go to the State Administrative Tribunal (SAT). The Strata Titles Act 1985 does not mention smoking, and neither do its default by-laws. Healthway, a WA government agency, told the strata law review that the state has "limited (if any) restrictions" on smoking within strata schemes.

We have not found a published SAT decision on balcony smoke drift. The NSW and Queensland cases above are useful guides, but they do not bind SAT, so a WA resident has to argue from the Act and the scheme's by-laws.

Section 83. Section 83 says an owner or occupier must not use a lot or common property in a way that "interferes unreasonably" with another person's use or enjoyment of a lot or the common property. It applies in every scheme, with or without a by-law. Unlike NSW section 153 and Queensland section 167, it has no separate hazard limb, so the case turns on whether the interference is unreasonable. A log showing how often the smoke arrives, how long it stays and which rooms it reaches is what proves that.

Default by-laws. Unless a scheme has replaced them, the Schedule 2 conduct by-laws apply. By-law 2 says an owner or occupier must not use a lot in a way that causes a nuisance to an occupier of another lot, and must not unreasonably interfere with other people's use of the common property. Check the scheme's registered by-laws first, because a scheme can amend or replace these.

Enforcing a by-law. Under section 47, the strata company can serve a written notice naming the by-law, the facts and the action required. It can apply to SAT if the breach had serious adverse consequences for someone else, the person breached the by-law on at least 3 separate occasions, or the person breached the notice. An owner, occupier or mortgagee can apply on the same grounds. SAT can order the person to stop or to take specified steps, and can impose a penalty of up to $2,000 paid to the strata company. One incident will rarely clear that bar, so start the log early.

Applying under section 83. Section 47 is the gateway for enforcing by-laws. Section 83 is part of the Act itself, so a neighbour can instead bring a scheme dispute about an alleged contravention of the Act under section 197, and SAT can order a person to stop under section 200. Section 197 has no three-occasion test. Occupiers count as scheme participants, so a tenant can apply as well as an owner. SAT looks at each case for mediation, normally at the first directions hearing.

If the strata company will not act. Section 112 gives the strata company the function of enforcing its by-laws. A failure to perform that function is itself a scheme dispute, and SAT can order the strata company to take specified action. The listed compensation order covers pecuniary loss or damage, so expect to show actual financial cost.

Writing a smoking by-law. A smoking rule is a conduct by-law, so section 44 requires a special resolution. In schemes of 6 or more lots, that means votes for from at least 50% of lots and unit entitlements, and votes against from less than 25% of each. Schemes of 5 lots or fewer have their own numbers under section 123. The strata company must apply to register the by-law within 3 months under section 48.

Section 46 makes a by-law invalid to the extent it is oppressive or unreasonable, or unfairly prejudicial or discriminatory against owners, having regard to the interests of all owners. SAT can rule on validity as a scheme dispute. We would rank the by-law options above the same way in WA: a common property ban or a smoke drift by-law is the safest, and a ban inside lots is the easiest to attack. Cooper is a NSW decision on NSW wording, and section 46 sets its own test.

The 2026 review. Landgate's Phase Two Discussion Paper, open for submissions until 26 November 2026, lists standardised by-laws on smoke and vape drift on common property among its proposed reforms. By-laws for drift between lots appear only as an area for future consideration, and drift between balconies is the usual complaint. On the current proposal, that complaint stays with section 83 and scheme-specific by-laws.

None of this is law yet. WA committees can pass a conduct by-law now, and owners who want drift between lots covered should make a submission before the deadline.

The state-by-state picture

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

What UnitBuddy tracks

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.

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Smoke drift complaints need evidence and a workable by-law, not vague requests for everyone to be considerate. Once smoke is affecting another lot, the issue becomes a nuisance and health question that the committee should treat as a formal compliance matter.

Further reading

• NSW: NCAT smoking decision: a turning point for smoke drift in strata, via LookUpStrata
• NSW: Regulating smoking in strata schemes: do you need a by-law?, via LookUpStrata
• WA: Can we stop a neighbour from smoking on the apartment balcony?, via LookUpStrata
• WA: Five-year review of WA's strata law, via Landgate

What changed in strata this month? Read the strata news for your state, with every figure sourced.

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