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New multi-unit developments need designated smoking areas

By GM2617 - 11 June 2015 55

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Our predicament = offensive second hand smoke drifting through our unit

My partner and I are being forced to put up with daily smoke drift problems in the multi-unit development we live in. These problems have been occurring since January 2014 when the building became occupied for the first time. Our apartment has been impacted on a daily basis by second hand smoke drifting in from seven other apartments (five below us and two above us).

What are we seeking to do to help ourselves?  

We wish to determine how the Territory Plan can be influenced to include designated smoking areas (DSA) in new multi-unit developments. The cost to install a designated smoking area and smoke-free design features is least expensive during the design stage.  The cost would be reimbursed to the developer by increasing the price of every unit that is to be sold. The smoke-free features in the building design would be identified in the contracts for sale that each prospective buyer would be required to read and sign, which influences the new unit owners from day one.

We ultimately wish to find a way to influence the future developers of nearby blocks that are designated for future multi-unit developments, to offer at least a portion of the residential dwellings as a dedicated smoke-free environment so that we can gain the opportunity to purchase a unit off the plan in a building that will be managed as a smoke-free environment from the beginning. We would prefer to move into a nearby new building that is promoted up front as smoke-free, rather than have to endure the daily smoke drift problems we continue to experience where we currently live. An off the plan situation is best for us as we have some design changes we wish to incorporate to assist us to cope with some disabilities and prepare for living through our retirement years.

If changes could be implemented within the Territory Plan, the planning process would then be seen to be aligned with the direction that new legislation is heading to reduce the incidence of smoking within the community and decrease the subsequent cost of smoking upon the jurisdictions budget.

What is happening in the ACT already?

Due to the lack of foresight by the developer and builder of the apartment complex we live in, our owners corporation (OC) is left to deal with the smoke drift problem as no provision has been made in the design, or in the purchase contract, for a designated smoking area (DSA) designed into the building. The OC has established a smoke-free policy in our first set of House Rules to try and manage the situation but that was not able to be done until 6 months after the smoke drift problem started. The enforcement of the smoke drift rules is proving to be a very long and challenging process due to the lack of legislative support and uncooperative attitudes of smokers.

A letter we received from the Chief Minister in March 2015 indicates that the ACT Government is committed to finding solutions to manage smoke drift in multi-unit developments, and that ACT Health is expecting to conduct a public consultation this year concerning the smoke-free topic. We intend to make a submission to any future public consultation to raise the following issues for consideration:

  • The majority of the community are non-smokers so multi-unit building design should cater for the needs of the majority rather than allow the minority of smokers to dictate undue influence over design decisions;
  • A unit balcony can certainly be classified as an enclosed eating area given five of the six sides are usually covered and families enjoy entertaining and eating a meal together on their balconies.  Current legislation requires a four-metre distance between outdoor enclosed eating areas and designated outdoor smoking areas, and a ten-metre distance between a smoker and a children’s playground.
  • Balconies in multi-unit developments are located too close together to prevent smoke drift causing a nuisance to adjoining residents or to children playing on balconies.  Up to three levels of balconies can be located within 10 metres of each other, and smoke will drift up and down the sides of a building, so a child playing on a balcony could be exposed to smoke drift from up to four balconies as the ten-metre distance would extend to balconies located two levels above or below their own balcony.
  • Current Building Code of Australia (BCA) and energy efficiency ratings aim to reduce heat loss and increase energy efficiency; however, condensation is a known result of compliance with these energy efficiency requirements of BCA. Builders recommend that residents in units keep doors and windows open regularly to provide natural ventilation to remove humidity and reduce the incidence of condensation; however, this is not possible when there is a constant threat of secondhand smoke drifting into your unit.
  • Current balcony design approaches prevents non-smoking residents being alerted to impending smoke drift issues before the smoke drift infiltrates throughout their apartment, so a solution needs to be emphasised in the Territory Plan to incentivise developers to want to deliver buildings that cater for the majority of non-smokers in our community.

In conclusion…While we wait for the ACT Health consultation on smoke-free issues to be publicised later this year, we felt it would be useful to raise the issues here to see what other members of the ACT Community feel about this matter.  We have created a few webpages on the internet to capture the facts about our situation so that it is easier to share these issues with others – see https://sites.google.com/site/livingsmokefreeinact/.

What’s Your opinion?


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55 Responses to
New multi-unit developments need designated smoking areas
GM2617 11:18 am 07 Sep 15

I was pleased to see a DSA question was asked at the recent ACT Twitter Cabinet event convened on 31 August 2015.

The question was: “How can we get thru to multi-unit developers that they MUST include Designated Smoking Areas in new apartments #CBRcabinet They are silent.”

The answer from ACT Government was: Crown leases define land uses but can’t restrict individual behaviour. New apartments’ designated smoking areas for body corporate”

This looks like the ACT government would prefer that the onus remains on the Body Corporate to incur the cost and aggravation of dealing with the internal debate with residents about setting up the DSA in a new apartment building.

The government can be seen applying pressure throughout the community to change smoker behaviour yet they are not willing to take an supportive step to impose some building code changes to reinforce a related behaviour that they are imposing on the community.

Action is needed up front by government and building developers to design suitable DSA’s into new apartment buildings so that the few Owners who gladly volunteer this precious time to serve on an Executive Committee of the Body Corporates can be spared the stress and aggravation of dealing with this smoke drift issue after the building design is completed.

Holden Caulfield 2:46 pm 18 Jun 15

TL;DR

I agree smoking is the pits, though.

GM2617 2:29 pm 18 Jun 15

Here is an interesting highlight from the ACT government regarding proposed changes to legislation that I would fully support…(see http://www.abc.net.au/news/2015-06-17/act-government-seeks-to-extend-smoking-bans/6553786)

The ACT government seeks to implement new powers which would allow them to dictate where people can smoke on territory land, and Health Minister Simon Corbell wants to see legislative power introduced that will allow government to say ‘…you just can’t be smoking anywhere.”

Mr Corbell apparently denied that a designated smoking area (DSA) would be a solution to the problem, which contradicts what is currently happening in outdoor eating areas where DSA’s are frequently used to enable smoking customers to enjoy the eating experience.

People living in close proximity in multi-unit developments also need the power to effectively manage ongoing smoke drift problems as the current powers under the Unit Titles Management Act are ambiguous and lacking sufficient toughness to provide body corporates with confidence the Tribunal will agree they are enforceable.

Mr Corbel said, “The point behind banning smoking in particular areas is on public health grounds …” and “It acts as an added incentive to people who are smoking to realise there is some inconvenience in that.”

My request to Mr Corbel and the ACT Government is to mimic these new laws in a revision to the Unit Titles Management Act 2011 to give body corporates the unambiguous power to enforce compliance with any Owners Corporation House Rules that seek to prevent second hand smoke drifts into adjoining units and impacting neighbours who live within 10 metres of each (this distance is the legislated minimum distance that a smoker is required to stay away from a children s playground in the ACT if the choose to smoke around a playground area).

Masquara 7:06 pm 17 Jun 15

Wow – what is the demographic of your area? Only 5 – 9 % of Australians smoke – concentrated in the low socioeconomics.

GM2617 1:06 pm 17 Jun 15

I received the following feedback from ACT Government about this DSA question:

“The Territory Plan is used to control what type of development can occur in a particular location (e.g. residential development), and in the assessment of development applications to ensure that buildings and associated facilities are designed in such a way as to protect the amenity of users and manage the impacts of development on the wider community and the environment.

Whilst the Territory Plan often requires certain aspects to be present in or around a development, it does not ordinarily include measures for controlling the behaviour of individuals on an ongoing basis. At this time there are no plans to introduce measures of this kind in the Territory Plan.

As indicated in section 2.8 of ‘Future directions for tobacco reduction in the ACT’, provisions exist under the Unit Titles (Management) Act 2011 for bodies corporate to manage this issue.”

This response indicates to me that the ACT Government does not realise the extent of the problem being experienced by body corporates.

Allowing the Developer and Builder to ignore this DSA issue is most likely to result in the high rise apartment building being constructed without any suitable space set aside for installing a Designated Smoking Area?

I am sure the Developers want more cost effective features included in the building design to enhance the popularity of the building to new purchasers. A DSA is a workable solution (proven in the workplace and outdoor eating areas within the community) to assist all future Owners of Units to deal more easily with the smoke drift problems that currently plague multi-unit developments.

So…how can the community influence Developers and Builders to adopt the following design requirements for establishing a DSA within a new building design:

1) located where the smoke drift will not impact other residents in their Units or in common property areas
2) protected from weather,
3) ventilated by natural wind action,
4) avoids the need for the smoker to be forced to wander outside the security of the building, and
5) separated greater than 10 metres from residents possessions in their storage areas and cars.

GM2617 11:52 am 12 Jun 15

Tymefor said :

…Perhaps working directly with body corporates would be better, by creating tailored solutions. Something like the healthy workplace group. They could meet with body corporates and help them create non-smoking plans for their buildings. funding a group like that could be somewhere the Gov could step in. Much like what the ANU just did.

I would like to provide some observations about the ideas you promoted…

The DSA idea I am proposing is a tailored solution that will work for the majority of smokers because the broader community already accepts this solution as a decent compromise in clubs, restaurants, workplaces and playgrounds.

The healthy workplace analogy is unworkable in an apartment environment because many owners and residents are apathetic about contributing their time to find solutions for the entire owners corporation – they are generally more self centred and just want to be left alone so they can quietly enjoy living in their apartment. This attitude is perfectly reasonable providing they do not cause nuisance to other residents [e.g. by causing smoke drift to infiltrate into another person’s apartment].

My own Body Corporate considers itself lucky if we get more than 20% of Owners actively voting at General Meetings and we rarely receive any suggestions from Owner or residents about doing something to improve the common living experience within the building.

Governments should not be funding anything in a body corporate situation as it is a private property situation. It is the Owners of the building who are responsible for the maintenance of the building and the environment that everyone lives in. The Owners do need government to influence builders by incentivising them to mandate DSAs in the building design so that the most appropriate area can be designed into the building infrastructure.

Owners do not have any way to influence building design before the building is erected, but they will flock to purchase a building design that offers wonderful features that make the living experience more enjoyable.

GM2617 11:34 am 12 Jun 15

Tymefor said :

I cant really get behind any policy that increases building costs, reducing housing affordability…

How about you consider this from the perspective of the Owners who volunteer their own precious time to be members of the Executive Committee (EC) of an Owners Corporation. The EC is required under the Unit Titles Management Act to enforce compliance with the agreed House Rules. My own experiences on an EC confirms that the EC members expend a lot of time looking after the daily management of the building and do not need the extra aggravations and stresses caused by residents who refuse to comply with House Rules.

A DSA is a workable solution (proven in the workplace and outdoor eating areas within the community) to assist the EC deal more easily with the smoke drift problem. A DSA demonstrates that the Owners Corporation is making a compromise for smokers, so the expectation is that smokers also compromise and use the DSA rather than be forced to smoke outside the building boundaries. What more can we expect than for both parties in a dispute to agree to an amicable compromise.

The cost of establishing a DSA during the building stage is tiny compared to the aggravation, stress and paperwork that will be incurred by the EC, and the smoker, if the Owners Corporation is required to seek enforcement of house rules at ACAT.

If a DSA is not considered during the building stage, the design of the building is likely to fail to provide an area that is suitable for a DSA (i.e. protected from weather, ventilated by natural wind action, separated from residents possessions in their storage areas and cars, and located where the smoke drift will not impact other residents in their Units or in common property areas), which creates more problems for the Owners Corporation that are difficult and stressful to resolve.

Until you have tried to deal directly with the smoke drift problem yourself, you will fail to appreciate the challenges. It is proving to be a very long and exasperating process to find an amicable solution to smoke drift problems when there is no DSA available and smokers are expected to go outside the building to avoid breaching house rules.

I am hoping you can now see the issue from a slightly different perspective…

GM2617 10:57 am 12 Jun 15

arescarti42 said :

…Frankly the best solution is probably just to keep your doors and windows closed, and put up with it…

I cannot agree with that approach because every apartment resident has the right under the Unit Titles Act to quietly enjoy thier apartment when and how they want to providing they do not cause a nuisance to other residents.

Everyone would like to be able to use their apartment balcony when they want to without the threat of cigarette smoke drifting over a meal they might be enjoying or the visitors they are entertaining on their balcony.

I am sure everyone would also want to be able to leave bedroom windows or balcony doors open while they are sleeping on warm nights to allow fresh cooling air to flow through bedrooms, and not be woken up in the early hours of the morning by smoke drift that has infiltrated throughout the bedroom and caused them to be woken up.

I also want to be able to ventilate my apartment as often as possible so that I reduce the risk of mold building up from excess condensation or moisture. I want the same right as a smoker to quietly enjoy my apartment when I want to and I don’t throw my smelly garbage into the loungeroom of a smokers apartment and expect them to put up with the odour or deal with any negative health impacts – that would be causing them a nuisance.

The reality is everyone should be able to expect to be treated in a friendly considerate manner (i.e. treat others the way you want to be treated), so lets find additional ways to help apartment dwellers deal with problems like smoke drift.

GM2617 10:37 am 12 Jun 15

arescarti42 said :

…Unfortunately having the Government force new apartment blocks to include designated smoking areas is unlikely to solve your problem. Just because a smoking area exists doesn’t mean people would use it, especially given how difficult it would be for the Government to enforce.
A resident’s association might be better equipped to implement and enforce this kind of thing…

The most workable solution for Body Corporates is for government to mandate DSAs up front in building design because that is consistent with community expectations and establishes a baseline that Tribunals and Body Corporates can rely on to seek action to enforce the agreed House Rules at the Tribunal if an Owners Corporation cannot reach an amicable agreement with an offending smoker. The fact that a DSA exists will make it much easier for the Body Corporate to politely ask smokers to use the DSA to avoid breaching House Rules, and use of an existing DSA by the smokers demonstrates that they are interested in living harmoniously within the apartment environment rather than causing ongoing nuisance.

Tymefor 10:29 am 12 Jun 15

I cant really get behind any policy that increases building costs, reducing housing affordability. Also a DSA would have to be maintained by the body corp, and I’m not really sure you’d get a lot of people supporting the idea of having to pay extra to maintain an area for smokers.

Perhaps working directly with body corporates would be better, by creating tailored solutions. Something like the healthy workplace group. They could meet with body corporates and help them create non-smoking plans for their buildings. funding a group like that could be somewhere the Gov could step in.

Much like what the ANU just did.

GM2617 10:27 am 12 Jun 15

GM2617 said :

A “Special Resolution only requires a majority vote outcome rather than a unanimous agreement..

To be more specific, a Special Resolution actually requires a 2/3 majority outcome.

arescarti42 10:19 am 12 Jun 15

I had this problem at my last place, so I can empathise with your situation.

Unfortunately having the Government force new apartment blocks to include designated smoking areas is unlikely to solve your problem. Just because a smoking area exists doesn’t mean people would use it, especially given how difficult it would be for the Government to enforce.

A resident’s association might be better equipped to implement and enforce this kind of thing.

Frankly the best solution is probably just to keep your doors and windows closed, and put up with it.

GM2617 10:05 am 12 Jun 15

Maya123 said :

… Maybe if enough want this the body corporate could pass this rule. I don’t know enough about those rules whether that is possible…

Yes, the Body Corporate can make this rule. In the ACT, the entire Owners Corporation must vote on the content of House Rules and a “Special Resolution” must be voted on at a General Meeting of all Owners. A “Special Resolution only requires a majority vote outcome rather than a unanimous agreement, so if the majority of Owners want a specific rule, then that should be possible.

Most Residential Tenancy Agreements these days include clauses preventing tenants from smoking inside a rented apartment because Owners understand the negative health impacts from second hand smoke and do not want the smell of second hand smoke (SHS) lingering in carpet and curtain fixtures their apartment. Unfortunately, my experience indicates to me that some tenants who smoke will act hypocritically in that they will respect the no smoking rule in the tenancy agreement because they will incur a cleaning fee when they move out, but ignore the smoke free policy rules in the Body Corporate House Rules and don’t give a toss about the impact of SHS on neighbours.

This attitude provides the motivation to push for mandatory Designated Smoking Areas (DSA) in apartment buildings to help the Body Corporate deal with the smoke drift issues in a friendly manner.

Everyone who chooses to live in a multi-unit apartment building just needs to abide by the building House Rules in the first instance in order to ensure they do not cause nuisance to their neighbours, which will enable everyone to live harmoniously in such a close environment.

Maya123 9:03 am 12 Jun 15

One of the biggest reasons I would not live in an apartment building is smokers. I realised how bad they make the place (making it unhealthy and sleazy) when I visited a friend (non-smoker) and the entrance area and their flat stunk of smoke. They were so used to it that they could no longer smell the smoke. It was very obvious to me, especially the entrance foyer. I think the only way around this is to make certain apartment buildings smoke free, so those who want to avoid the smoke can. Maybe if enough want this the body corporate could pass this rule. I don’t know enough about those rules whether that is possible. I read somewhere that the body corporate passed this ruling with a residential building overseas. There were only three smokers in the whole complex. They were renting. Apparently after this ruling they moved out, rather than curtail their habit.

GM2617 8:47 am 12 Jun 15

What is the definition of “smoke-free features in a building design”? I don’t believe this definition exists yet; however, my immediate thoughts come up with the following list as a starting point for discussion:

1) a DSA located somewhere i the common property areas that is protected from rain and prevailing winds, with sufficient natural / free ventilation to dissipate smoke drift;

2) the DSA needs to be located away from resident storage areas and parked cars so that the odour of cigarette smoke does not impregnate residents possessions

3) a smoke free policy promulgated up front in the default House Rules (Owners Corporation articles) that new Owners must read before they sign up to the Contract for Sale. The rule could include the following statement that puts the onus on the smoker to control where their second hand smoke drifts to:
– An Owner, Occupier or User of a Unit must not smoke, or allow any other person to smoke, within a Unit, including a Unit balcony if the smoke and/or odour generated by the person’s smoking is likely to:
(i) enter into any other Unit; or
(ii) cause discomfort and/or annoyance to any other Owner, Occupier or User.

4) signage around common areas publicising the smoke free policy so it is obvious to people before they sign a purchase or rental contract that the building is a smoke free environment.

5) recognition that some apartment balcony designs meet the definition of ‘enclosed spaces’ i.e. more than 75% enclosed as five of the six sides of a balcony space are typically enclosed by floor, ceiling (overhead cover) and walls/glass, with only one side (<25%) open to the fresh air
– which should then result in building design being required to ensure adjacent balconies are separated by more than 10 metres to comply with current legislation to provide adequate separation between smokers and children's playgrounds.

Any other ideas from anyone?

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