Investigative Journalism and Learning Hub - Request to SP52948 Lot 151 to Stop Smoking on 30 December 2022

From:	SP52948 owner
To:	Maureen McDonald Lot 151, Robert Crosbie Waratah Strata management, John Gore SP52948 Chairperson
Subject:	IMMEDIATE REQUEST TO STOP SMOKING - Lot 151 visitor in courtyard and ors
Date:	30/12/22, 07:23

Good morning,

Waratah Strata Management received 41 complaints about smoking in the complex and faulty/expired smoke alarms from Lot 158 since 2017, and they were mostly ignored:

• Deliberate nuisance,
• Smoking facility which is not approved by owners corporation at any legally-convened meeting,
• Serious health hazard for fragile owner of Lot 158 due to smoke drift into two bedrooms and the balcony,
• Secondhand smoke - harmful to health, and there is no safe level of exposure (Cancer Council NSW),
• Damage to furniture and cloths in Lot 158 due to persistent cigarette smell.

An example of persistent issues related to smoking and fire safety:

https://www.nswstratasleuth.info/SP52948-ongoing-smoking-problems-examples.pdf

At 06:38 hours this morning, and again at 06:59 hours, repeat offender, your son, was witnessed by two persons, smoking in the courtyard of Lot 151 (if you want to deny it, evidence has been collected).

On a daily basis, whilst he is the visitor in the complex, this issue affects Lot 158 because smoke drift enters two bedrooms on the second floor, so much so that windows in bedrooms have to be closed.

You are requested to stop doing it immediately, based on the following court decisions in NSW and Queensland:

• In Queensland, at the beginning of 2022, a unit owner was barred from lighting up on their own balcony in a game-changing watchdog decision that will now make it easier to ban smoking on apartment terraces, experts say. The Body Corporate and Community Management (BCCM) has barred a unit owner at Artique Resort, Surfers Paradise from smoking any “tobacco products” on their balcony following a complaint from an owner of an apartment on the floor directly above.

• In NSW, NCAT decided in February 2022, that occupants of a multi-storey strata building had been disturbed by smoke from an adjoining apartment. The owners corporation had a by-law which addressed the issue of smoking. The by-law prohibited owners and occupants from “smoking on common property or allowing smoke to enter common property”. The owners of the apartment experiencing the smoking from their adjoining occupants, complained to the owners corporation which issued a Notice to Comply to the occupants who were smokers. The smokers did not comply with the Notice to Comply and kept smoking. When proceedings were commenced in NCAT by the owners corporation seeking a penalty against the offending occupants, the smokers argued that the Tribunal could not make an order because, among other matters, the complaining owners had experienced smoke in their apartment, and the by-law only prohibited smoke from entering common property. The owners corporation argued that common property included the air space immediately outside the smokers’ apartment. For the smoke to reach the apartment of the owners affected by the smoke, it had to travel through common property air space outside the building, through the air space of a balcony and through a common property window to make its way into the apartment. This argument was accepted by the Tribunal. NCAT imposed a penalty on the smokers for continuing to breach the smoking by-law after they were given the Notice to Comply.

• In NSW, NCAT made similar ruling in December 2022: Newport v Pittman [2022] NSWCATAP 150. Brenton Pittman and Lynette Cartwright from Kingscliff in the Northern Rivers region took their downstairs neighbours, Des Newport and Carmen Traynor to the NSW Civil and Administrative Tribunal (NCAT), which ultimately ruled in their favour. The couple accused their neighbours of smoking on the balcony and said it drifted up to them and even leaked through air vents, even if they closed their doors and windows and used a fan and air purifier. Since the ruling, the neighbours or any guests they bring over are no longer allowed to smoke on their balcony and they are reportedly looking to sell their unit. Pittman said the case dragged on for more than a year and involved an initial hearing, which they won, an appeal they lost, and a final hearing with lawyers where they prevailed.
  

On a separate note, Waratah Strata Management is requested to:

1. Provide evidence that Notice to Comply was sent to another repeat offender, who continues to smoke in his garage below Block A.

2. Organize Extraordinary General Meeting to overturn decisions made at AGM 2022 due to lack of financial auditor's report before the meeting (it was created 43 days after the meeting, in non-compliance with strata laws), lack of compliance for sending notices of the meeting withing prescribed time-frame, and failure to provide fully-costed tenders for all fire safety rectification work (overdue to comply with City of Ryde orders).

It is worth stating that on the day of general meeting, 27 October 2022, SP52948 had Admin Fund negative balance of $203,914.85 (it appears such information was hidden from owners and certainly not included in the Minutes of the meeting). As of 25 December 2022, Admin Fund had negative balance of $130,200.95. For the first time in history of strata complex SP52948 whole three-month financial period will have negative balance in Admin Fund (1 November 2022 to 31 January 2023).

3. Prepare new 10-Year Capital Works plan and present to all owners for voting. Current one is useless. Extract from minutes of EC meeting on 23 September 2021 - shortage of $1,515,541.00 in Capital Works Fund against the forecast in April 2017 that was allegedly approved without general meeting. Annual General Meeting was held on 28 October 2021, and no owner received email or printed copy of rushed updates to Capital Works Fund which simply delayed all major repairs, effectively made balance looked artificially positive:

https://www.nswstratasleuth.info/SP52948-discrepancies-in-BIV-report-for-10-Capital-Works-Fund-in-2017-and-2021.pdf

Frequent failures to maintain common property, high-risk legal cases, failed insurance claims, and lack of proper enforcement of by-laws, generate serious problems. And the risks can come in any form due to failure to disclose problems in the complex:

Supreme Court ruling in Western Australia in May 2022 has proven many factors can completely derail a house sale, making it something both buyers and sellers need to be aware of:

Supreme Court of Western Australia - HILLAGARATNAM -v- DOAN [2022] WASC 185 (27 May 2022)

The ruling, handed down at the end of May this year, saw the sale of a $390,000 apartment in Perth disintegrate.

The buyer successfully sued the vendor for breach of contract and fraudulent misrepresentation of the property after the sellers signed a contract claiming: “The seller does not know of anything which will materially affect the buyer’s use or enjoyment of the strata lot or of the common property comprised in the strata scheme.”

4. Organize overdue repairs in Lot 158, as per previous reports.

5. Update By-Law on smoking, to include better technical definition of common property - prepare a well-drafted by-law so that owners corporation can comprehensively deal with the issue: the use of all tobacco types, including cigarettes, pipes and cigars, vaping, debris created by these practices, and the issue of “smoke-drift”.

Thank you,