Smokers told to stop smoking at home

SYDNEY, March 11, 2007

An Australian court said a Sydney couple should stop smoking in their apartment if the smell upsets the neighbors.

The Sunday Telegraph reported that Chris May and Linda Crossan decided to move instead of abide by the city court's order.

Neighbors had complained that smoke seeped through the walls and under doors from the couple's apartment. They were ordered to refrain from allowing smoke to enter other apartments, even if it meant not smoking.

Anti-smoking activists said they will campaign for similar court judgements.

But a spokesman for the Australian Council for Civil Liberties told the Sunday Telegraph the decision may be unfair.

"Would a vegetarian make a complaint about someone cooking meat on their barbecue next door because they didn't like the smell?" he asked the newspaper.
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Couple driven out of home for smoking

By Barbie Dutter in Sydney, Sunday Telegraph
11/03/2007

It has never been tougher to be a smoker in Australia, as restaurants, pubs, beaches and even some pavements are declared off-limits to those who want to light up.

Until now smokers have at least been able to puff away with impunity in their own homes. But even that prerogative has come under threat following a landmark legal decision.

In a ruling that squarely undermines the premise that an Australian's home is his castle, a tribunal has ordered a Sydney couple to stop smoking inside their city-centre apartment because the smell was upsetting neighbours.

The order has been welcomed by the anti-smoking lobby but condemned by civil libertarians, who fear it will spark many similar claims.

The affected couple, Chris May and Linda Crossan, chose not to abide by the ruling and opted to move out. They had rented their two-bedroom flat, which boasted a view of Sydney Harbour and cost about £300 a week, since late 2005.

Their neighbours had complained to the apartment block's owner that smoke was seeping under doors and through walls. After numerous failed attempts to seal the cracks, the matter was taken to a tenancy tribunal, which found that the couple were breaking the by-laws of their building.

They were ordered to refrain from allowing smoke to enter other apartments and common areas, even if that meant they couldn't have a cigarette inside their own home.

Anti-smoking activists said they would campaign for similar judgments. But David Bernie, a spokesman for the Australian Council for Civil Liberties, said the decision could set an unfair precedent: "Would a vegetarian make a complaint about someone cooking meat on their barbecue next door because they didn't like the smell?"
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Neighbours see off smokers in tribunal

Catharine Munro Urban Affairs Editor
February 28, 2007

A COUPLE have been ordered to stop smoking in their home in a ruling that the Office of Fair Trading predicts will become more common as the battle against cigarettes intensifies.

Residents of the Highgate apartments in Millers Point won their attempt in the Consumer, Trader and Tenancy Tribunal to stop the tenants, Chris May and Linda Crossan, smoking at home. The order also applied to their landlord.

The decision has inspired one anti-smoking group to urge its members to seek similar findings.

In November a strata schemes adjudicator, Graeme Durie, upheld an argument that smoking by Mr May and Ms Crossan was breaking the strata building's by-laws by causing a nuisance to the occupiers of other apartments.

The ruling marked a new trend in imposing rules on private space, said Peter Berry, the acting deputy commissioner at the Office of Fair Trading. However, no review of strata laws was planned as a result of the finding, Mr Berry said.

"It used to be that you can't make by-laws interfering in what you do in your own property," he said. "[But] you are probably going to see more of them."

The decision has disturbed the NSW Council for Civil Liberties. Its vice-president, David Bernie, said: "I really find that a rather odd decision, and we would be opposed to any concept unless the behaviour inside the apartment is affecting people, even if it's self-harm, such as smoking."

One complainant, Elizabeth Jackson, said embarrassment at interfering with her neighbours' privacy had stopped her from taking action for several months.

But she was compelled to act after the smell from her neighbours' apartment became so bad that she was forced to sleep elsewhere on two occasions last year.

After expensive efforts by the owners' corporation to seal the walls failed, she won the support of the corporation to take the matter to court.

"It was a very sensitive and a very embarrassing 10 months," Mrs Jackson said. "These days you expect to be able to do something about it because there are so many places you can't smoke."

Ms Crossan and Mr May moved into apartment 1208 at Highgate in late 2005. Their neighbours in 1207 and 1209 noticed the smoke immediately.

Mrs Jackson recalled finding her bed linen smelling of smoke when she came down from her home in Newcastle every few weeks to stay in her one-bedroom Highgate apartment. The odours were worsened by chemicals used to mask the smells.

"Often when you walked in it would be like smelling a pub," she said. "I found it embarrassing because I feel that everyone is entitled to use their apartment as they wish but once it starts affecting other people there's an issue because it's really stopping your enjoyment of your place."

The design of the unit was such that sometimes she could not open the window on rainy nights to air it out. "I think with these apartments, on an occasion like this, people expect them to be like Tupperware containers but you can't keep smells contained in these high-rise apartments."

Mrs Jackson said she got no help from the real estate agent, or the landlord. Attempts at mediation last year broke down. In September Mrs Jackson and another neighbour, who did not wish to be interviewed, requested through the owners' corporation an order from the tenancy tribunal for their neighbours to "prevent smoke odour from their cigarettes entering other lots and the common property".

Two months later Mr Durie found in the corporation's favour. "It may be that, in the extreme, compliance with the orders will mean that the tenants cannot smoke in the lot they occupy, but that is a consequence of the nuisance and lack of enjoyment which the smoking creates," he wrote.

Mr May and Ms Crossan opted to move out rather than stop smoking, and are now renting an apartment in the neighbouring Observatory Tower. "They are not influencing what I do because I moved," Mr May said. "I have lived in apartments for 25 to 30 years. I have never had a problem with neighbours."

A strata specialist, Maynard Gill, said a precedent for such rulings had been set in the Supreme Court in 1997, when Justice Windeyer ruled that a strata block could have a by-law that prevented smoking at home. He expected more decisions against smokers. "As a strata manager I'm getting more and more complaints from people regarding second-hand smoke intrusion," Mr Gill said.

The president of the Non Smokers Movement of Australia, Margaret Hogge, said she planned to start a campaign to get similar tribunal findings. "We will be calling on them to make claims so we can get people's homes smoke free."

But a spokesman for Action on Smoking and Health, Stafford Sanders, said his members were urged "to first explore the polite avenues so that they can reach a mutually acceptable solution".
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Pub smoking ban 'raises risk to children at home'

January 23, 2006
Brendan O'Keefe

BANS on smoking in hotels and restaurants have increased passive smoking among children because people now smoke more at home.

Academics Jerome Adda and Francesca Cornaglia, in a claimed world-first study, say that "bans in recreational public places can perversely increase tobacco exposure of non-smokers".

In a paper published by the Australian National University's Research School of Social Sciences, where Dr Adda and Dr Cornaglia were visiting scholars last year, the academics say bans "displace smokers to private places where they contaminate non-smokers".

"Children seem to be particularly affected," they wrote. "The level of cotinine (a nicotine by-product measurable in saliva) in children considerably increases as a result of bans in recreational public places."

A total ban on smoking in public recreation places results in an increase of cotinine in non-smokers of 1.5 nanograms per millilitre. For some non-smokers, avoiding smokers may not be possible. Young people may have little choice but to stay with their parents or carer.

On January 1, Tasmania became the first state or territory to impose a ban on smoking inside all pubs and clubs. All other jurisdictions, except the Northern Territory, have legislation ready to follow suit by July next year. The next states to ban smoking inside pubs and clubs will be Queensland and Western Australia in July, followed by the ACT in December and Victoria and NSW in July next year.

The Northern Territory is reviewing its laws.

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