The Wind Did It — Battling Cigarette Smoke Drift under the Residential Tenancies Act (NSW)
December, 2025
You couldn’t script this if you tried.
In July 2025 we sold our beautiful Rockdale unit that had been the source of so much stress and angst, and embarked on a new journey of freedom: renting a modern, 2 bedroom unit in Arncliffe.
We were stoked. The location couldn’t be better. We were 50 metres from the train station, 100 metres from the IGA, there were three chemists within spitting distance, and Naji’s and Lebanese pizza a stone’s throw away if we didn’t feel like cooking.
Unfortunately, two months later, we would discover with horror that we had exited the frying pan and immediately entered the nearest fire.
The next-door neighbours — just like our neighbours in Rockdale — were smokers, and their cigarette smoke became an unwelcome guest in our rental at all hours of the day and night.
I was reflecting on why we didn’t notice it straight away. June and July were ridiculously cold, and we had kept all the doors and windows closed to preserve the heat.
By August, things had started to warm up, and one sunny Friday I’d left my bedroom window open during the day. At 9:30pm that night I arrived home to discover the front bedroom absolutely filled with cigarette smoke, and the next-door neighbours out on their balcony.
I notified the property manager. They assured me they’d “look into it”.
Over the next three months, this situation played out ad infinitum. We’d experience cigarette smoke drifting into the unit, we’d notify the PM, the PM would express concern and assure me they’d do something about it.
In the meantime, having been through this rigmarole before (except the previous time was as an owner, not a tenant), I opened up Google worksheets, and with a heavy sigh started compiling another Smoke Drift Event Log.
I also did a bit of digging and discovered that my landlord also owned the unit above. This was a crucial piece of evidence. In the standard lease there is a clause that is taken directly from s50 of the Residential Tenancies Act.
(3) A landlord or landlord’s agent must take all reasonable steps to ensure that the landlord’s other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises.
Other neighbouring tenants! There is no possible misinterpretation of this clause, the landlord is contractually and statutorily obligated to manage his other tenants and ensure they don’t engage in antisocial behaviour.
The confrontation
In September, I attempted to resolve the matter directly with the tenants above. When that predictably failed, I realised I would need hard evidence.
The next time we smelt smoke in the house, I stepped into my courtyard and saw the female tenant standing at the front of her balcony with a cigarette in her hand.
I began filming. As soon as she noticed, she started screaming about privacy breaches and threatening to call the police. All the while, she was filming me on her own mobile phone. According to her logic, this meant we were apparently both committing criminal offences simultaneously!
The irony was lost on her. I remained calm and continued recording long enough to capture both tenants smoking, to prove that they were the source of the smoke in my house. As you can see, it didn’t go down well!
Here is a transcript of the interaction captured above^^
Despite all of this evidence, the property manager insisted that (a) it couldn’t possibly be them because they told him they’d stopped smoking, and (b) tried to deflect it and suggest it was coming from somewhere else.
The final straw came on the 7th of October. Tuesdays were usually a bad day for smoke drift — the male tenant was usually home and made multiple trips out on his balcony to smoke cigarettes and then flick the butt over the front of the building into the street.
We logged 4 separate smoke drift events that day. Interestingly, the PM also emailed us to say:
“The tenant has informed us that the breach notice has been received, although we are still awaiting confirmation from the strata. We have advised the tenant that adherence to the special by-law is required to avoid termination of their lease agreement.”
Wait. The tenant informed you he had received a breach notice, but you’re still waiting on strata to confirm?? That makes literally no sense.
My Application to NCAT
Mid-October I stopped communicating with the property manager altogether and lodged my application with NCAT, claiming breaches of ss 50 and 52 and holding the landlord liable for failing to provide premises ‘fit for habitation’.
Suddenly, the agents’ attitude did a swift 180.
They realised that I had used the video evidence above in my application and they. were. pissed. I received this lovely email in response:
“Please note that recording or photographing other residents on their balconies, particularly where their faces or conversations are captured, may breach the Surveillance Devices Act 2007 (NSW). For privacy reasons, such material cannot be used or shared as part of the strata complaint process.”
Wrong. You are dead wrong. You are wronger than wrong. The Surveillance Devices Act only applies in locations where there is a “reasonable expectation of privacy”. Activities conducted on a balcony that is visible from other properties, the street, and Arncliffe railway station are observable by the general public and accordingly, there is no reasonable expectation of privacy in that area.
Also — this was never a strata issue. The landlord owns both units. He had full authority, under the Residential Tenancies Act, to manage his own tenants and enforce compliance.
The fact that a Class 1 real estate agent failed to understand this and repeatedly deflecting responsibility onto strata instead is not just concerning. It is professionally alarming.
Conciliation
Our conciliation was on the 12th of November. The property manager, Richard Perry, appeared on behalf of the landlord. We were sent into a mediation room with a conciliator and a tenant advocate, where Richard made the following remarks (words to the effect):
- “The smoke isn’t coming from that apartment, it’s coming from the cafe, the tobacconist, and the barber!”
- “Whenever I walk down that street there are always crowds of people standing around smoking!”
- “Cigarette smoke goes up, it doesn’t go down!”
- “When Amanda inspected the apartment, she saw the tobacconist, she saw all the people smoking on the street, so it’s on her!”
- “If she’s not happy in the property, she should just move out!” (this last one earned a raised eyebrow from the tenant advocate who was compelled to pipe up “you know it’s very hard to find a rental in Sydney??”)
The conciliator was very skeptical of my claims and told me I needed really strong evidence to prove my point. She also treated the Respondent’s word as equal in weight to my own. In hindsight I realised this was a good thing: it gave the other side false confidence that they could just march in and make their absurd claims and the Tribunal would just shrug and say, “okay”. It also gave me confidence that the Respondent had shown his hand and I knew exactly the sort of arguments to expect on the day.
We were ordered to submit our evidence to Tribunal and to each other, and to expect an email from the registry with our hearing date at some time in the future.
The Evidence
I had 24 exhibits! All indexed and cross referenced! I made solid use of my Small PDF subscription to merge and paginate, and I was so pleased with how this turned out. I found a zippered A4 binder folder at Officeworks that just fit all my documents, and I separated them with manila dividers and then added some little yellow flags on each exhibit so that they would be easy to find.
Hilariously, when I received the Respondent’s bundle, they had copied my presentation style! Except theirs was crudely numbered with Sharpie, and held together with a bulldog clip.
My evidence contained:
- My lease agreement
- All the emails sent back and forth about the smoking
- A property title showing the landlord also owned Unit 12 (except it was owned by the landlord’s company)
- An ASIC company extract showing the landlord was the sole director and secretary of the company (trying to link them, in the case that there was a dispute about who was the legal owner, which there was)
- A copy of the video of the upstairs tenants smoking and abusing me
- In addition to the video, I also captured stills, and provided a transcript, so that the Member could clearly see that not only were they the source of smoke, but by the landlord failing to take action he had allowed the situation to deteriorate into harrassment, making my unit a very unpleasant place to live.
- My smoke drift log! I learnt from last time. My contemporaneous log showed 77 events over 113 days, including whether or not I had any visual or audio confirmation. It paints a damning picture.
Now. The respondent’s evidence. Go and make a cup of tea, because this is the most hilarious thing you’ve ever seen.
From the outset, it was obvious the respondents had completely missed the point.
Their submission spiralled through a familiar list of excuses: that they had “done everything possible”; that there was “no evidence” the neighbouring tenants were smoking; that the smoke could have come from cafés, tobacconists, or the general atmosphere of the suburb; that I had “stopped responding” after 2 October (a curious way of blaming me for their own inaction); and finally, false and defamatory allegations that I had been “harassing” the very tenants whose conduct I was reporting.
The strategy appeared to be less about addressing the legal issues, and more about throwing enough shit at the wall in the hope something might stick.
Under a heading labelled “Evidence and Observations” there is a fantastic self-own:
“The tenant of Unit 7 has indicated that reliance must be placed solely on Clause 15.3 of the lease agreement, which does not prohibit smoking on the balcony. Therefore, the agency cannot prevent smoking under the lease alone.”
How in god’s name can you misinterpret this clause?! The ignorance is staggering!
And yes, they really did compile 20 pages of a “Smoke Dispersion Assessment Report”. I’m laughing thinking about all the hours they wasted on this. It’s completely useless.
One of my favourite pieces in the respondent’s evidence bundle is a statutory declaration from the upstairs tenant that is clearly intended to be Very Clever™ and legally impressive. Unfortunately for her, it does the exact opposite.
She carefully states: “I have lived at Unit 12 for approximately three years. During this time, I would occasionally smoke a cigarette on my balcony…”
Not “I used to smoke.”
Not “I stopped smoking.”
But “during this time” — present tense, rolling straight through to now.
Then there’s this gem:
“When smoking, I positioned myself where the wind consistently moves upward and away from the building on the far opposite side of unit 7. Any smoke produced rose upward and did not travel sideways and along 4.5 metres and then downward toward Unit 7. ‘smoke rises’.”
Apparently, before lighting a cigarette, the tenant conducts a full atmospheric analysis, confirms consistent vertical airflow, rules out turbulence, downdrafts, thermal inversion, architectural voids, and urban wind shear — and only then proceeds, reassured that the smoke will behave itself and obey the laws of polite geometry.
What makes all of this even more surreal is that neither of these tenants are the legal respondents. The landlord is. Whether the smoke came from Unit 12, the street, a café, or aliens on Mars — if the premises are materially impacted then they are not fit for habitation, and liability sits squarely with the landlord.
Their evidence bundle also contained gems such as this work of art that looks like it was done with Microsoft Paint:
“Wind direction as stated by the Bureau Of Meteorology heads directly towards the front of the building and upwards to where unit 7 open balcony fronts and with it brings any smoke smell from the front of the building where customers stand smoking outside waiting at the massage shop and cafes. Homeless people also smoking use the old lobby entrance which is also directly under unit 7 to sit, smoke and shelter.”
And this delightful work of fiction claiming that if you stand really really close, you’ll hear the “whoosh” of the wind as it rushes up the imaginary chute.
“Wind direction as stated by the Bureau of Meteorology heads directly towards the front of the building. Before quitting smoking when the tenant smoked occasionally to the right of his open balcony well away from unit 7, the head-wind takes any smoke up and away from all apartments as the open chute within the buildings [sic] void to the right acts like an open chimney of which you can clearly hear and feel the wind rushing up that part of the building — smoke does NOT travel downwards and across approximately 4.5 metres.”
Dear lord no. Just no. This is not just wrong — it is spectacularly wrong.
Established environmental health research shows that cigarette smoke (specifically fine particulate matter, PM2.5) can:
- travel 8–10 metres or more from its source,
- move laterally, downward, and upward depending on air pressure, temperature gradients, and turbulence,
- linger and re-enter buildings through windows, doors, vents, and pressure differentials.
Studies used by the WHO, US EPA, and Australian public health authorities confirm that tobacco smoke disperses unpredictably in outdoor and semi-enclosed environments — especially around multi-storey buildings, balconies, voids, and façades.
These documents are perhaps the most “creative” in the respondent’s bundle. Rather than engaging with the actual source of the smoke, the Respondent constructs an elaborate alternative narrative involving cafés, a massage shop, homeless people, wind tunnels, and upward-travelling odours — all converging beneath my balcony. It’s imaginative, certainly. If real estate doesn’t work out, Marianne might consider a career in publishing — she clearly has a talent for making shit up.
My Day at NCAT
My hearing was scheduled for Monday, 8th December.
I represented myself.
The respondent was represented by Marianne Hart (Luke Hart’s mother) — also a licenced real estate agent but in ‘semi retirement’ and only there because she was the one who “used to do all the Tribunal hearings” — and Richard Perry, who had attended conciliation and said things like, “If Amanda is not happy in the property she should just move out”.
1. They completely misunderstood the case
From the outset, the respondent’s authorised agents fundamentally misinterpreted the nature of the claim. They genuinely believed this was a lot-vs-lot dispute, rather than a claim against the landlord for breaches of ss 50 and 52 of the Residential Tenancies Act.
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Marianne repeatedly insisted that the smoking tenants should be the respondents, and she was so determined to defend them that she even offered to get the tenant on the phone during the hearing. The Tribunal Member politely declined.
Marianne’s entire argument boiled down to:
- “It’s the suburb — it’s full of Middle Eastern men and they smoke all the time!”
- “We can’t control it, so you just need to accept it!”
- “We’ve done everything we can to stop the tenants smoking!” (spoiler: they hadn’t)
- “There’s nothing else we can do!”
After she had heard both of our initial arguments, Senior Member Collins asked if she could clarify a few things. She asked us both:
“Do we agree that there is a tenancy, and there is a dispute about this tenancy, and the dispute sits within the residential tenancies act?”
I immediately clocked what she was doing and I was nodding along vigorously, because the other side just didn’t get it. At all. She had heard all the nonsense arguments about strata, and the other tenants, and the suburb, and the wind direction, and she was trying to establish jurisdiction. Didn’t work, they were both clueless.
2. Question Time
I was cross-examined. It was brutal. Marianne fired questions at me like she was auditioning for CSI: Law and Order. She was flinging questions at me like:
“Do you agree that the tenants stopped smoking in September?!”
“Do you agree that we responded to all of your emails?!”
“Do you agree that the smoke could have come from the shops?!”
“Do you agree that we’ve done everything we can to stop the smoke?!”
“Do you agree that this one time you accused the tenants of smoking it wasn’t them and it was in fact two random men on the street?!”
(Yes, she really did ask me this.)
I stayed calm and answered what I could.
And then came the kicker:
“Do you agree that you have a PODCAST where you talk about smoking in apartments??”
I actually laughed out loud “A Podcast? What??” Then I realised — they had stumbled upon the interview that I had given Amanda Farmer on Your Strata Property!
The Member directed me to answer. So I said:
“Yes, I had an issue in a strata building as an OWNER, where I battled smoke drift from ANOTHER OWNER, and we had to litigate under the Strata Schemes Management Act, which is an entirely different legal framework to this one.”
(Side note: This aggressive bullying towards a tenant who is just trying to assert her rights is NOT going to go down well for them!)
3. The “privacy” moment
Marianne was adamant that her client was entitled to “privacy” and asked that he not be named, and Member Collins had to remind her that the proceedings were public and that anyone could walk in and listen.
Nevertheless, Member asked me if I had any comments on this matter and I responded, “I have no problem with not mentioning the respondent’s name on my imaginary podcast” and I was fully expecting to be rebuked but none were forthcoming. I am laughing so hard recounting this moment.
4. The wrong dates
During cross-examination, Marianne triumphantly asked why I had said “maybe he could smoke on the other side of the balcony” on 14 October and then changed my mind.
I asked the Member if I could refer to my paperwork, then — in my best teacher voice, speaking slowly and deliberately like I was talking to a dementia patient — explained to Marianne that yes, I did say that, in an email about cigarette butts and ash falling into my courtyard, but it wasn’t from October, it was from July, and October 14th was when I PRINTED IT FROM GMAIL.
She was looking at the printed date, not the sent date!!
Her big ‘gotcha’ moment proved she can’t even read email headers. I watched her shuffle papers frantically while Richard looked like a stunned mullet.
5. The flight ticket fiasco
One of the most satisfying moments came during cross-examination when Marianne attempted what she clearly thought would be her killer blow:
“ARE YOU AWARE THAT THE TENANTS WEREN’T EVEN HOME ON THE WEEKEND OF THE 17TH OCTOBER??”
She delivered this with such triumph, as if she’d just checkmated me. I couldn’t help but smile. I pivoted toward her, leaned in, and asked, “What time did they fly in from the Gold Coast, Marianne?”
The Member immediately rebuked me — quite rightly, as witnesses aren’t allowed to ask questions during cross-examination — and I apologised profusely. But the damage was done. Marianne began shuffling through papers frantically, clearly not knowing the answer to her own “gotcha” question.
What I really wanted to say, and should have been allowed to explain, was this:
Yes, they were away on Friday the 17th and Saturday the 18th. My log shows no smoke incidents on either of those days. But on Sunday the 19th, I logged smoke at 9:00 PM — a full FOUR HOURS after their 5:00 PM arrival back in Sydney from the Gold Coast, giving them plenty of time to get home and get stuck into the durries. Their own evidence — the flight ticket they’d proudly produced to “prove” I was wrong — actually validated the accuracy of my record-keeping.
Flustered and clearly realising she wasn’t going to get anywhere with that line of questioning, Marianne quickly moved to another equally ridiculous question before eventually throwing her hands up and admitting, “I don’t even know what to ask!”
6. The crusade as character assassination
There was one hilarious moment that stood out in its absurdity. When Marianne was on her rampage about my “podcast” she asked me:
“DO YOU AGREE THAT YOU ARE ON A CRUSADE TO GET RID OF SMOKING IN APARTMENTS??”
And all I could do was sit there with my mouth hanging open in incredulity, laughing, not knowing what to say.
Member Collins turned to me and directed me very sternly: “MS xxx ANSWER THE QUESTION, ARE YOU ON A CRUSADE TO GET RID OF SMOKING??” She was clearly compelled to say this purely from a procedural standpoint, but inside she must have been thinking, “What an utterly preposterous question!!!”
My answer was simply, “Well, from my own home, yes?”
This was the moment that the respondent abandoned all legal argument because they had none.
7. Calling the police
Lastly, in a last-ditch attempt to discredit me, Marianne triumphantly announced that the upstairs tenants had “called the police on Amanda for harassment.” The Member didn’t even bother asking whether any report or evidence existed because there was none. No charges, no caution — nothing. Just another dramatic flourish in a proceeding where they continually mistook theatrics for legal argument. I’m still waiting to be arrested.
8. Final submissions
When it came time for final comments, the Respondent’s entire submission was essentially:
- “We’ve never had a complaint about smoking before!”
- “We manage so many properties without a single issue!”
- “We’ve done everything possible!”
- “There are smokers everywhere!”
- “What do you expect the landlord to do — pick up the building and move it somewhere else?”
My response was:
“Member, the respondent has fundamentally misinterpreted the nature of this claim. This is not me versus the other tenants. This is a claim against my landlord for breach of his obligations under Section 52 of the Residential Tenancies Act.
If the respondent claims the property is subject to severe, persistent, uncontrollable cigarette smoke drift from all directions at all hours of the day and night, then the premises are fundamentally uninhabitable and should not be leased.
You cannot simply tell a tenant ‘it is what it is’ and expect them to keep all their doors and windows closed. It doesn’t work like that.”
9. The silver lining
I have no idea when orders will be handed down, but one thing was settled today: They confirmed on the record that they have no issue releasing me from the lease and allowing me to move on.
And honestly? That alone feels like a victory.
10. Just for funsies, a summary of the entire legal defence:
- It’s the suburb — people smoke everywhere, all the time!
- Middle Eastern men in the area smoke constantly, so what do you expect?
- We’ve never had a problem like this before!
- Smoke doesn’t go down, it goes up!
- The previous tenant didn’t complain, so we don’t understand why this is a problem now!
- Amanda didn’t give us a chance to come and smell the smoke in her apartment!
- Amanda has a podcast!
- Amanda is on a personal crusade!
- Amanda is doing this for attention!
- The landlord has done everything he could!
- The smokers in Unit 12 should be the respondents instead!
- We asked strata to send breach notices and they didn’t!
- People line up outside the massage parlour downstairs and smoke!
- People sit on the public bench outside the tobacconist and smoke!
- The smoking tenants told us they stopped smoking in September!
- We acted on every complaint by replying to her emails!
- We can’t control cigarette smoke from the street!
- We don’t know what else Amanda expects us to do!
- What do you expect us to do, pick the building up and move it somewhere else?
- There are smokers everywhere; it’s just part of living in this area!
Ay carumba. I hope and pray sanity prevails and we get some compensation for this madness.
Update 09/12/2025
Michelle’s accusation just became prophecy — I’m being invited back onto Amanda Farmer’s podcast to discuss my case!
Update 13/12/2025 and 20/12/2025— The Open House
The minute I sent the Notice to Terminate, they immediately re-listed the property and asked for access to the unit for inspections on both Saturday 13th and 20th December. They explicitly asked me “not to interact with any prospective tenants”.
https://www.realestate.com.au/property-apartment-nsw-arncliffe-441773292
Saturday 13th they arrived as scheduled. I was in the middle of packing. There were boxes everywhere. Richard Perry was conducting the open house. I was sitting on the couch with my 19yo daughter who had come over to help me pack. Richard was showing a couple around the unit. They had a very young daughter with them, about 5 years old. I felt so bad thinking that some poor person was going to rent this unit not knowing about the issues, so I started to say something.
My daughter said, under her breath, “Mum! He’s filming! Don’t say anything!” I looked up and Richard was walking around with his arms folded across his body and his mobile phone camera pointing out. It was such a bizarre moment because I couldn’t believe a licenced real estate agent could do something so openly illegal in such a private setting. The moment passed, the inspection concluded and it was too late to say or do anything.
My daughter later told me that she felt really uncomfortable knowing that someone had private video of her without her knowledge or consent, particularly as she had a singlet top on and felt exposed. It was honestly such a violation of our privacy.
I was understandably anxious about the second inspection coming up on the 20th. I’m single, so I posted on Airtasker asking for someone to come and hang with me for moral support and to keep an eye on the agent in case they decided to covertly film me again.
Sure enough, Richard Perry showed up and walked around the unit with his mobile phone camera out. I mentioned it to my guy who confronted Richard and asked him, “Are you filming?” Richard said, “No”, AS HE PRESSED THE STOP BUTTON ON HIS PHONE.
My guy explained in no uncertain terms that Richard couldn’t do that, it’s a breach of the Surveillance Devices Act, because Amanda is still the lawful tenant and these are private premises until possession is handed over. Richard got all pissy and said, “Who the fuck are you?” My guy continued to explain that he was in the wrong and we could call the police now if he liked. Richard threw a tantrum and left.
I was literally shaking and SO glad I had someone there for support.
He also couldn’t believe that a REA would openly do something so off the charts illegal and so brazenly.
Later in the day I went to Kogarah police station to make a statement but the lovely constable behind the counter explained that there wasn’t much they could do without hard evidence.
I’m going to let this one go, but I needed to let everyone know to be very, very careful if you are ever unfortunate enough to deal with this agency.
