This question from an NSW resident concerning cigarette butts and litter thrown onto their balcony.
Question: How do I stop cigarette butt litter from being dropped onto my balcony from the neighbours upstairs?
I rent a small apartment in NSW. Like many apartments, my balcony is accessed via my living area.
For the past 2 years, I have been facing the constant problem of people littering onto my balcony. Residents of higher apartments who overlook my balcony dump waste and cigarettes butts over their balustrades which end up in my outdoor area. Every week I have to clean up the mess.
It’s unmanageable! I have spoken to both my letting agent and the building owner, but have been unable to resolve the issue. What options do I have to stop this behaviour of the higher up neighbours and enjoy my balcony again?
Answer: The butts pose a fire hazard (if not totally extinguished) and cause you nuisance. This is in breach of Section 117 of the strata legislation
Assuming you have Schedule 1 (standard by-laws), this behaviour from upstairs will be in breach of by-law 9 if the butts land not only on your balcony but also on some areas of the common property:
Depositing rubbish and other material on common property
9 Depositing rubbish and other material on common property
An owner or occupier of a lot must not deposit or throw on the common property any rubbish, dirt, dust or other material likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using the common property.
Additionally, the butts pose a fire hazard (if not totally extinguished) and cause you nuisance. This is in breach of Section 153 of the strata legislation:
153 Owners, occupiers and other persons not to create nuisance
- An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not:
- use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
- use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or
- use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.
As you are the lawful occupier of the lot, you would be an “interested” person and could pursue the matter through the Office of Fair Trading (Mediation) and NCAT.
Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440
This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
This post appears in Strata News #111.
Have a question or something to add to the article? Leave a comment below.
Read next:
- NSW: Q&A Light Shining Into the Apartment Causing Nuisance
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We recently bought a new property (brand new) and paid extra for a bigger balcony hoping to enjoy some fresh air. But are unable to enjoy it due to our neighbours. We don’t know who they are but we have 4 levels above us. The continuously throw cigarette butts (no properly extinguished), saw some spitting in our balcony after eating pan masala and litter – used toilet paper roll. We found one really close to clothes stand which could have caused fire in this weather. Have been complaining to strata, they put common notice which doesn’t help.
Please advise what can be done? We want to buy some plants and a hammock for the balcony, but, are afraid of fire hazard.
Thanks
Hi Minal
We have received this reply back from Leanne Habib, Premium Strata:
Assuming you have the standard by-laws, this behaviour from upstairs will be in breach of the depositing rubbish by-law if the butts land not only on your balcony but also on some areas of the common property:
Depositing rubbish and other material on common property
An owner or occupier of a lot must not deposit or throw on the common property any rubbish, dirt, dust or other material likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using the common property.
Additionally, the butts pose a fire hazard (if not totally extinguished) and cause you nuisance. This is in breach of Section 153 of the strata legislation – see above in the body of the article for a link and reference to this section of the Act.
Depending on the circumstances in which it occurs, the penetration of smoke from smoking into a lot or common property may cause a nuisance or hazard and may interfere unreasonably with the use or enjoyment of the common property or another lot.
As you are the lawful occupier of the lot, you would be an “interested” person and could pursue the matter through the Office of Fair Trading (Mediation) and NCAT.
Your owners corporation/strata manager should be issuing your neighbours a notice to comply and to cease and desist from throwing items off their balconies.
We received a comment in from one of our QLD readers asking:
Are the rules the same in Queensland?
Leanne Habib, Premium Strata has supplied the following response:
Yes, the situation in Queensland is similar to that of NSW – cigarette butts landing on your balcony falls within (a) & (b):
Body Corporate and Community Management Act 1997 – SECT 167
167 Nuisances
The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that—
(a) causes a nuisance or hazard; or
(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.