Bill Sheath and Rhonda Sheath v Rick Whitley and Sandra Whitley [2014] NSWCATCD 44

Bill Sheath and Rhonda Sheath v Rick Whitley and Sandra Whitley [2014] NSWCATCD 44

The Tribunal held that the respondents' actions in smoking, and allowing others to smoke, in the courtyard of lot 8 caused a hazard to occupants of lot 7 within the meaning of s 117(1)(a) of the Strata Schemes Management Act 1996 (NSW), particularly in view of the applicants' respiratory conditions. The risk of exacerbating these conditions constitutes a hazard under the Act, justifying a restriction on smoking in a defined area of the respondent's courtyard.

Parties
Applicant: Bill Sheath; Applicant: Rhonda Sheath; Respondent: Rick Whitley; Respondent: Sandra Whitley
Jurisdiction
Australia
Judgment Date
08 April 2014
Procedural Posture
Appeal / Hearing and Final Decision
Outcome
Order granted in part; restriction imposed on respondent's smoking in designated area.
Legal Topics
Nuisance, Hazard, Smoke Drift, Second Hand Smoke, By Laws Enforcement
Strata Law Property Law Health Law Nuisance Hazard Smoke Drift Second Hand Smoke By Laws Enforcement

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Parties

Bill Sheath

Applicant

Rhonda Sheath

Applicant

Rick Whitley

Respondent

Sandra Whitley

Respondent

Procedural Posture

Appeal / Hearing and Final Decision

Legal Issues

  1. 1 Whether the respondent's smoking in the courtyard constitutes a nuisance or hazard within section 117 of the Strata Schemes Management Act 1996 (NSW).
  2. 2 Whether an order should be made restricting smoking in part of the courtyard of lot 8.

Ratio Decidendi

The Tribunal held that the respondents' actions in smoking, and allowing others to smoke, in the courtyard of lot 8 caused a hazard to occupants of lot 7 within the meaning of s 117(1)(a) of the Strata Schemes Management Act 1996 (NSW), particularly in view of the applicants' respiratory conditions. The risk of exacerbating these conditions constitutes a hazard under the Act, justifying a restriction on smoking in a defined area of the respondent's courtyard.

Court Disposition

Order granted in part; restriction imposed on respondent's smoking in designated area.

Orders

  • The first respondent, Rick Whitely, is not to smoke in an area of the courtyard of lot 8 of SP 47970, as defined in paragraph 24, nor allow any invitees or other occupants so to smoke.