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NSW: Q&A Who can view CCTV footage in a strata scheme

The LookUpStrata Team

These Q&As are about CCTV cameras on common property in a NSW strata scheme. Is signage required? Who can view footage?

Table of Contents:

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Question: A contractor working outside my property took a photo of the inside of my lot. What are my options? Is this a privacy breach?

Our strata manager informed me that a contractor took a photo of the inside of my lot. The contractor was working on the back fence, not inside my lot. I was unaware of the photo. I’ve requested to see the photo, however, the email can’t be located. What are my options? Is this a privacy breach?

Answer: There is no common law right to privacy in Australia.

As a starting point, there is no common law right to privacy in Australia. It can be protected in certain circumstances, however, these typically arise as an incident of another part of law.

Most typically, this will arise where a photograph or video has been obtained during a trespass onto private property.

In the example given, the photograph that was taken occurred while the contractor was presumably permitted to be on the property.

That being the case, there is not an existing trespass to serve as a justification for a finding that the photograph was taken “illegally”, which would then give a basis to seek an injunction against the person who took the photo.

If the contractor was on the property without consent (trespassing), there may be an entitlement to seek an injunction against the photographer. This is not always going to be ordered, however, and the court weighs up what the potential harm is to the individual by the dissemination of the photo.

Refer Young J as he then was in Lincoln Hunt Australia Pty Limited v. Willesee (1986) 4 NSWLR 457 at 463:_

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“[I] am of the view that the Court has power to grant an injunction in the appropriate case to prevent publication of a videotape or a photograph taken by a trespasser … However, the Court will only intervene if the circumstances are such to make the publication unconscionable.”

Paul Wiseman Bannermans Lawyers E: enquiries@bannermans.com.au P: 02 9929 0226

This post appears in Strata News #697.

Question: My daughter’s request for approval to install a security camera outside of her unit door was denied. Is this reasonable?

My daughter owns a lot in a small multi use complex. Her lot is her primary place of residence. She recently commenced short term rental of her lot to assist with mortgage payments. She is fully compliant with all STRA registration requirements and notified the owners corporation via the strata manager prior to commencing STRA.

She requested approval from the owners corporation to install a security camera outside her unit door. Several shops on the ground floor of the complex have external cameras installed. The request was denied.

My daughter has asked all other residents on her floor if they have any issues with her installing a security camera. No one has any concerns.

Answer: A common property rights by-law must not be unreasonably refused or you can go to NCAT for an order that NCAT makes the by-law.

I can only make general statements as I am not engaged to provide advice. These statements may or may not assist your daughter.

If the camera is installed on common property:

  1. It is not her lot property. This means that section 8 of the Surveillance Devices Act 2007 applies. This section makes it illegal for a person to install a CCTV camera on somebody else’s property without the consent of that other person.

  2. She needs approval to keep her cameras on the common property. We’ve discussed this in an article: NSW: CCTV – Who is Watching?

Note that there is nothing in the Surveillance Devices Act 2007 that prevents a person from installing a CCTV camera on a property that they own or with the consent of the owner of that property and recording activities on a neighbouring property provided that it records visual, not audio footage.

My thoughts are that your daughter should have a motion drafted for a by-law to authorise her to install the CCTV cameras and keep them on the common property. A common property rights by-law must not be unreasonably refused or you can go to NCAT for an order that NCAT makes the by-law. The other option would be to install a ring camera or similar. These are within the lot and use a peephole (if there is one).

Allison Benson Kerin Benson Lawyers E: allison@kerinbensonlawyers.com.au P: 02 4032 7990

This post appears in Strata News #646.

Question: We have a challenging relationship with the neighbouring lot within our strata complex. The neighbour has made complaints about our backyard and photographed our yard over the fence. Is this a breach of privacy?

Answer: The photography may constitute a nuisance.

The right to privacy is not entirely clear cut and the Privacy Act, 1988 (Cth) does not expressly deal with photography. Also, your backyard is outside, readily visible to your neighbour and you weren’t engaged in any particular private activity, in which case, there may not be a breach of privacy.

However, the photography may constitute a nuisance under section 153 of the Strata Schemes Management Act, 2015 (NSW) as reproduced below:

153 Owners, occupiers and other persons not to create nuisance

  1. An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not—
    1. 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

You should seek legal advice on the matter as the photography may be trespass or harassment too.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in the May 2023 edition of The NSW Strata Magazine.

Question: Can I install CCTV inside my unit so I can keep watch on my vehicle parked out the back?

Can I install CCTV inside my unit to watch over my vehicle parked out the back? The installation would not be on common property and the camera only sees part of the backyard and car park.

We will only turn the CCTV on while we are on holiday. There is no invasion of privacy for other residents.

Answer: You can install CCTV cameras, however, you need to be aware of a few restrictions.

The quick answer is that you can install CCTV cameras, however, there are a few restrictions you need to be aware of when doing so. If you are a lot owner, you can install security devices. You can also conduct cosmetic work without approval. This means that the actual work to install a camera should not need owners corporation approval as there are no structural or waterproofing issues.

The restrictions are:

  1. you can’t install anything in your lot that can be seen from outside your lot and is not in keeping with the building and

  2. there is a good argument that if you install the camera (screw it into the wall or window frame) you are conducting work that can be seen externally and, therefore, it is not cosmetic work or a minor renovation.

For this reason, you may want to install a camera that is not screwed in but potentially stuck onto the paintwork. Then there is the privacy issue. I discuss these issues and a case that is on point in my vlog: CCTV cameras in strata & community title schemes.

Allison Benson Kerin Benson Lawyers E: allison@kerinbensonlawyers.com.au P: 02 4032 7990

This post appears in the May 2023 edition of The NSW Strata Magazine.

Question: Residents are illegally dumping bulk household waste on common property. We are thinking of installing CCTVs. Can we distribute images from CCTV to help identify who is dumping rubbish?

In our building, residents are illegally dumping bulk household waste on common property. To stop this, our owners corporation is planning on installing CCTV cameras in the affected areas.

While the cameras will capture images of the offender/s, we still need to determine which apartment they are from. Can we post images of the offender/s on the noticeboards and circulate photos to all residents? There’s nothing in the Surveillance Devices Act 2007 that covers this, however, we have concerns it may be a Privacy Act issue. Can we distribute images from CCTV? We’ve also thought of identifying people via key swipe information.

Answer: I have seen a defamation notice sent for less than this.

The answer is yes. It would become a Privacy Act issue as the stills would identify the individuals. I recommend against putting up photos from the CCTV for this reason. I have seen a defamation notice sent for less than this and even though if you correctly identify the person dumping the waste and therefore have a defence of truth, you’d still have to put time and effort into rebutting a defamation notice.

The second issue is that it leaves open bullying and harassment or even potential discrimination claims if the same action is not taken (and in the same manner) for every person dumping the waste. Even if the OC takes the same action for each person, it would not alleviate the OC from a claim of indirect discrimination. Essentially, the case law as to whether it applies to a strata scheme depends on the jurisdiction you are in.

The third reason is that I very much doubt your OC has either put up signs notifying people that they are on CCTV and that if caught breaching the by-laws, their picture may be displayed on the notice board or put this statement in a by-law regulating the use of CCTV footage.

Key card access is not infallible e.g. occupant A is in bin room, they leave just as occupant B arrives and holds the door open for them, occupant B never swipes in.

If this is a regular event, it may be easier to increase the waste receptacles for your scheme and put in place a by-law mentioned above. I would hope that installing signage and adding a clause to allow the use of footage would act as a deterrent, especially if notice was slipped into the letterbox of each unit before this regime started.

Allison Benson Kerin Benson Lawyers E: allison@kerinbensonlawyers.com.au P: 02 4032 7990

This post appears in the April 2023 edition of The NSW Strata Magazine.

Question: Our strata complex has video surveillance cameras in and around common property. Can the committee restrict who can view the footage?

We live in a strata complex with video surveillance cameras in and around common property.

Who is able to view video footage if an incident has occurred?

The Strata Committee currently withhold access to view footage. Lot owners must provide a detail application to the committee following this criteria:

Two members of the Strata Committee then view the footage. The person who raised the request is not permitted to view the footage.

We have concerns this may result in a conflict of interest if the committee members viewing the footage are involved in the matter or if they do not wish other members or associates to be implicated in a matter.

Answer: We recommend the passing of a by-law to regulate the placement thereof, viewing and storage of footage by whom and for what period of time, CCTV signage etc.

While the strata legislation does not expressly deal with the installation of CCTV, like any other installation on the common property, a special resolution by the Owners Corporation may authorise same (provided the Owners Corporation complies with the Surveillance Devices Act, 2007 (NSW) and obtains Council consent, if required, and, only common property is monitored). We recommend the passing of a by-law to regulate the placement thereof, viewing and storage of footage by whom and for what period of time, CCTV signage etc.

If the CCTV is limited to optical/video surveillance and the Owners Corporation maintains it, it will likely form part of the books and records of the Owners Corporation and theoretically be available for viewing under an inspection of Owners Corporation’s records under the strata legislation (which attracts a fee).

In our view, the footage should be available to all owners (as they all own the common property in proportion to their unit entitlements) and we understand that if you have been video recorded you have the legal right to view the footage (though you would need to seek legal advice on this aspect) as there are competing concerns.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in the September 2022 edition of The NSW Strata Magazine.

Question: Our sensor has been mistaken for a camera and the Owners Corporation has falsely accused us of filming neighbours. We have found this very upsetting. What is the best way to resolve this issue?

Around 8 years ago we received approval to put a tiny 1/2 inch sensor above our front door to activate our remote control door.

Our current strata committee and strata manager are harassing and sending us emails to remove the sensor. They have taken photos and are making allegations that we are using the device to take photos. They are referring to the sensor as a camera and have accused us of taking photos of children in their swimmers in the pool, which is not even in the path of this sensor.

We don’t live at the premises and only visit once in the blue moon to just air out our units. No one lives there. We have found the whole matter very upsetting. The sensor is a luxury item which is useful and has meaning for us, but no one else.

Answer: The allegations should be responded to in writing by the owner noting exactly what the sensor is and that further unfounded accusations will constitute harassment.

How was the original approval for the sensor given? This sounds like something that could be considered under the changes to common property by-law – relevant parts highlighted below:

2 Changes to common property
  1. An owner or person authorised by an owner may install, without the consent of the owners corporation:
    1. any locking or other safety device for protection of the owner’s lot against intruders or to improve safety within the owner’s lot, or

  2. any screen or other device to prevent entry of animals or insects on the lot, or

  3. any structure or device to prevent harm to children.

  • Any such locking or safety device, screen, other device or structure must be installed in a competent and proper manner and must have an appearance, after it has been installed, in keeping with the appearance of the rest of the building.

  • Clause (1) does not apply to the installation of any thing that is likely to affect the operation of fire safety devices in the lot or to reduce the level of safety in the lots or common property.

  • The owner of a lot must:
    1. maintain and keep in a state of good and serviceable repair any installation or structure referred to in clause (1) that forms part of the common property and that services the lot, and

    2. repair any damage caused to any part of the common property by the installation or removal of any locking or safety device, screen, other device or structure referred to in clause (1) that forms part of the common property and that services the lot.

    • The allegations should be responded to in writing by the owner, noting exactly what the sensor is (ideally supplying the specifications which show that it’s not a camera/incapable of doing what has been accused), that the allegations are serious and that further unfounded accusations constitute harassment and that mediation might need to called for should the matter not be promptly resolved.

    Andrew Terrell Bright & Duggan E: Andrew.Terrell@bright-duggan.com.au

    This post appears in Strata News #233.

    Have a question about a privacy breach or something to add to the article? Leave a comment below.

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