My neighbour is a heavy smoker and smokes regularly. Am I able to restrict their smoking in a particular location on their property and would I be more likely to win a case if this was taken to tribunal? – Sean, QLD

Q: My neighbour is a heavy smoker and smokes regularly between the hours of 05:45 – 21:00

He smokes either on his balcony or directly below it on their backyard deck. In both cases this adjoins our property and is only 2 or 3 metres from two of my large sliding glass doors and a few additional metres to a bedroom window/another large sliding glass door. When he smokes, if any of these windows/doors are open the smoke enters our property and is causing my family much distress.

On three occasions I’ve approached my neighbour and inform him of the problem and the distress it is causing. I’ve politely asked if he could smoke at the front of his property (on his front porch) instead. However, unfortunately he has not changed this behaviour and continues to smoke next to our windows. The last time I approached him, he stated clearly that there was no room for compromise and that it was his property and therefore he could smoke when and where he likes.

As I’m not trying to enforce a total restriction on this person’s right to smoke outside their property; but instead trying to restrict their smoking outside in a particular location on their property would I be more likely to win a case if this was taken to tribunal (as compared to the failed Norbury v Hogan case)?

A: Refer to the by-laws to see if your neighbour is breaching any rules by smoking on his balcony, which may be considered common property. If the matter requires further escalation, you may be able to take it to the committee at a general meeting and raise a motion to help address the issue.