17 October 2013
With summer approaching fast so is the desire to have a great summer barbeque outdoors, or should I say, on strata unit balconies.
Smoke from charcoal and woodfire barbeques can be more of a nuisance for some people than others, especially for occupiers who have breathing difficulties, asthma, children and the elderly.
Whilst one occupier may wish to enjoy a barbeque outdoors, another occupier may be suffering from fumes being transmitted into their own unit.
Section 117 of the Strata Schemes Management Act 1996 provides that an occupier of a lot must not use or enjoy the lot in such a manner as to cause a nuisance to the occupier of any other lot. Given the trend of decisions in the NSW Consumer, Trader and Tenancy Tribunal supporting the view that smoking cigarettes on balconies may constitute a nuisance, there is no reason why charcoal or other fumes and odour emitted from a barbeque on a unit balcony should be treated differently.
Also, there is nothing to stop an owner or occupier of a strata unit commencing legal proceedings in the courts against another owner or occupier in nuisance claiming damages.
To avoid unnecessary litigation between neighbouring strata occupiers, we recommend the owners corporation register a section 47 by-law restricting the use of charcoal or woodfire barbecues on selected balconies.
If you would like further information in respect to amending your strata by-laws, please contact our specialist strata lawyer Michael Pobi in Sydney on 8710 3420.