Hi this is a question for Havenlawyer. I need your help…

To answer your questions:

1. The Owners corporation can make rules and or amend existing rules as per:

http://www.austlii.edu.au/au/legis/vic/consol_act/oca2006260/s138.html

However, rules will be of no effect if they unfairly discriminate against a particular occupier of a lot,

http://www.austlii.edu.au/au/legis/vic/consol_act/oca2006260/s140.html

and I can imagine there may be scope for arging any law which simply banned smoking absolutely may arguably be unfairly discriminatory. I expect any rule imposing a blanket ban on smoking may be rejected by the tribunal as unfair except to the extent it restricts owners from allowing smoke into the common areas. So a rule requiring lot owners to restrict smoke from entering or affecting the common areas would almost certainly be effective, but a rule that purports to impose a smoking ban on lot occupiers may be considered unfair and unreasonable. Both lot occupiers and lot owners can take action to remove the rule, or defend any enforcement action against them for breaching the rule.

As to enforcement, there is no strict obligation on the committee to enforce the rules, rather they are entitled to use their discretion but have a general obligation to look to the Owners Corporation's best interests. For this reason lot owners should not expect the committee to pursue rule breaches which are primarily affecting them. Generally, such issues will need to be pursued by the affected lot owner.

The Owners Corporation Act includes lot occupiers, and not only lot owners, as those entitled to bring a dispute under the Act before VCAT. As tenants are lot occupiers they can bring proceedings before VCAT much the same as you can. However, VCAT is only able to hear diputes of a sort which various laws permit it, such as disputes under the Owners Corporation Act, but not disputes about common law nuisance which by default have to be heard by the courts.

If the occupier were forced to leave by orders obtained from the Tribunal, then it might result in a legal dispute between the occupier and their landlord over a possible breach of the lease agreement, but the landlord won't normally have any recourse against owners corporation unless they can show it has acted improperly.

2. You can only bring a direct action for nuisance or any other cause of action against the persons who are causing the nuisance or who have committed the tort against you. Presumably the lot owner's only involvement is that they own the lot, they are not however, generally responsible for the actions of their tenants. So no, you cannot normally sue the lot owner for such matters unless they were involved in some way more direct that simply being the owner.

You cannot apply to VCAT to force the owner to insulate or do anything to the unit in question unless you impose a rule that all units where unit owners or their tenants wish to smoke be insulated. You would then be applying to VCAT to enforce the rule, but until there is a rule, VCAT won't force a property owner to take such action.

3. If there is a strata rule against smoking you can apply to VCAT to order compliance with the rule, impose fines for failing to comply, etc. Absent such a rule, VCAT does not have jurisdiction to deal with nusiance matters which would need to be brought in a court.

As to the best way forward, a claim against the tenant in nuisance is perhaps the most likely to fix your immediate problem relatively quickly, however, taking such action may be expensive and only addresses the problem with regard to this particular tenant (who might leave at some point in time and be replaced by another smoker). Therefore the longer term solution may be to propose rule amendements to either implement rules to make the common areas entirely smoke free zones and to require lot owners to either impose conditions on their leases that tenants not smoke, or alternately to require such lot owners to take adequate insulation measures so that smoke does not enter the common areas or affect other lot owners. Such rules would need careful consideration and to be effective should be drafted by a lawyer experienced in drafting such rules. This is your best long term solution but would likely take considerable time to implement and could only be done with the support of the Owner's Corporation, and anything less than unanimous support may see legal challenges.

I trust the above assists your understanding.