Pittman v Newport [2022] NSWCATCD 173

Pittman v Newport [2022] NSWCATCD 173

The respondents' frequent smoking of tobacco on the balcony of unit 201 caused substantial and unreasonable interference with the applicants' use and enjoyment of unit 301 by allowing smoke to drift into their lot, constituting both a nuisance and a hazard under s 153(1)(a) Strata Schemes Management Act 2015 (NSW). Orders restraining the respondents from smoking or permitting smoke to enter the applicants' lot are necessary and proportionate to remedy the wrong.

Parties
First Applicant: Brenton Mark Pittman; Second Applicant: Lynette Robyn Cartwright; First Respondent: Desmond Newport; Second Respondent: Carmen Traynor
Jurisdiction
Australia
Judgment Date
11 October 2022
Procedural Posture
Strata Title Application (nuisance/hazard) / Decision After Remitted Hearing Following Appeal
Outcome
Orders granted in favour of the applicants.
Legal Topics
Nuisance, Hazard, Tobacco Smoke Drift, Private Nuisance, Strata Schemes Management
Land Law Strata Title Torts Nuisance Hazard Tobacco Smoke Drift Private Nuisance Strata Schemes Management

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Parties

Brenton Mark Pittman

First Applicant

Lynette Robyn Cartwright

Second Applicant

Desmond Newport

First Respondent

Carmen Traynor

Second Respondent

Procedural Posture

Strata Title Application (nuisance/hazard) / Decision After Remitted Hearing Following Appeal

Legal Issues

  1. 1 Whether cigarette smoke drift from unit 201 constitutes a nuisance or hazard to the occupiers of unit 301 under s 153(1)(a) Strata Schemes Management Act 2015 (NSW)
  2. 2 Whether the respondent lot owners permit or cause smoke, fumes or odour of tobacco products to enter the applicants' lot
  3. 3 Whether the interference is substantial and unreasonable

Ratio Decidendi

The respondents' frequent smoking of tobacco on the balcony of unit 201 caused substantial and unreasonable interference with the applicants' use and enjoyment of unit 301 by allowing smoke to drift into their lot, constituting both a nuisance and a hazard under s 153(1)(a) Strata Schemes Management Act 2015 (NSW). Orders restraining the respondents from smoking or permitting smoke to enter the applicants' lot are necessary and proportionate to remedy the wrong.

Court Disposition

Orders granted in favour of the applicants.

Orders

  • The respondent Lot Owners, Desmond Newport and Carmen Traynor, must not smoke tobacco products on the balcony of their Lot (unit 201).
  • The respondent Lot Owners, Desmond Newport and Carmen Traynor, must not cause or permit any other person to smoke tobacco products on the balcony of their Lot (unit 201).