This article discussing Owners Corporations and Security Cameras has been provided by Warwick van Ede, JS Mueller & Co Lawyers.
The use of surveillance cameras in both private and public spaces is increasing significantly. Cameras are installed by local councils and private enterprise, and you can expect to be digitally recorded walking into a shopping centre, travelling on public transport, and even taking the dog for a walk in a local park.
An often vexed issue is what rights lot owners and owners corporations have to install their own security cameras.
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Two recent NCAT decisions confirm that lot owners generally do not have the right to install security cameras on common property without first obtaining the consent of the owners corporation. Where they do not obtain that consent, then the owners corporation is entitled to require the security cameras to be removed.
However, there are also lessons for owners corporations, with the possibility that owners corporations and lot owners may commit an offence under the Surveillance Devices Act 2007 (NSW).
The First Case – A Couple of Cameras
Background
In mid-2018, the lot owner moved back into a unit owned by her and which had been let to tenants. Due to her concerns about a level of “dispute” within the strata scheme, the lot owner installed 2 security cameras on the (common property) building – 1 outside the main bedroom of her unit, and 1 outside the kitchen.
The security cameras were motion-activated and recorded footage which was then stored on a hard drive.
This action by the lot owner, without the consent of the owners corporation, was the source of some unhappiness among other owners. Initially, the owners corporation instructed the strata manager to contact the lot owner. The purpose of such contact was to advise the lot owner that the owners corporation was not happy with the cameras being installed.
Shortly afterwards, the strata manager again contacted the lot owner advising her that she would need specific permission from the owners corporation to attach the security cameras to common property walls. There was no response from the lot owner and the owners corporation served a Notice to Comply on her. Still, there was no action from the lot owner.
Finally, the owners corporation gave the lot owner a deadline and indicated that if the lot owner did not remove the security cameras by that deadline then the owners corporation would take its own steps to do so.
The lot owner then commenced proceedings in the NSW Civil and Administrative Tribunal (NCAT) and obtained interim orders restraining the owners corporation from removing the security cameras pending the ultimate hearing of the matter. However, following that hearing, the original interim orders were revoked by the Tribunal, and orders were made for the removal of the cameras.
The decision of the Tribunal followed a fairly orthodox line of reasoning.
Need for Approval to Use Common Property
The Tribunal referred to By-Law 5 of the strata scheme which stated:
- “An owner or occupier of a lot must not mark, paint, drive nails or screws or the like into, or otherwise damage or deface, any structure that forms part of the common property without the approval in writing of the owners corporation.
- An approval given by the owners corporation under clause (1) cannot authorise any additions to the common property.”
The lot owner in this situation had not obtained consent. Since no consent had been obtained, the Tribunal had no difficulty in ordering that the security cameras be removed.
Surveillance Devices Act
The Tribunal also brought to the attention of the lot owner that in recording footage of persons outside of her lot, the lot owner was likely to be in breach of section 8 of the Surveillance Devices Act. The Tribunal noted that a breach of section 8 of the Surveillance Devices Act was punishable by a significant fine or imprisonment.
The Second Case – Half a Dozen Cameras!
Background
In another decision handed down recently, the Tribunal was once again required to consider circumstances where a lot owner had installed multiple security cameras on common property walls.
In this case, the lot owner had installed:
- 3 CCTV cameras facing the backyard;
- 1 CCTV camera facing the main entry door of her lot;
- 1 CCTV camera facing her garage door and parking spots; and
- 1 CCTV camera facing the common property driveway containing the rubbish
- The lot owner did not obtain the consent of the owners corporation to the installation of any of these cameras.
Failure to Comply with By-Law
As with the case referred to above, the owners corporation drew to the attention of the Tribunal one of its by-laws, being Special By-Law No. 3, which stated:
“An owner or occupier of a lot must not, except with the prior written approval of the owners corporation, install, use or maintain an optical or audio surveillance device on their lot, or on common property in order to record visually or aurally, or observe or listen to the carrying on of an activity.”
In light of the failure of the lot owner to obtain the owners corporation’s approval, here the Tribunal made an order that if the lot owner did not remove the security cameras herself, that the owners corporation was entitled to do so, at the lot owner’s cost.
In this case, the Tribunal again referred to the potential application of section 8 of the Surveillance Devices Act, and the risk that the lot owner placed herself in, in recording footage.
Lessons for Owners Corporations
Almost every owners corporation will have a by-law or by-laws which will be able to prevent a lot owner from installing CCTV cameras on common property without the consent of the owners corporation, and owners corporations should not hesitate to require lot owners to comply by either obtaining consent from the owners corporation or removing CCTV cameras which have been installed without consent.
It is also timely for strata managers to bring to the attention of owners corporations the potential difficulties for individuals and for corporations under the Surveillance Devices Act, and the need to take great care when it comes to the installation of surveillance devices.
If owners corporations take the step of initiating security cameras themselves, they risk committing an offence pursuant to the Surveillance Devices Act.
This post appears in the August 2020 edition of the NSW Strata Magazine.
Have a question or something to add to the article? Leave a comment below.
Read next:
- NSW: Resident Safety and Dealing with a Violent Visitor in Strata
- NSW: Owners Corporations, Common Property Repairs and Insurance – A Tricky Relationship
Warwick van Ede
Lawyer
JS Mueller & Co Lawyers
E. warwickvanede@muellers.com.au
W. http://muellers.com.au/
P: 02 9562 1266
This article has been republished with permission from the author and first appeared on the JS Mueller & Co Website.
Disclaimer: The information contained in this article is provided for your personal information only. It is not meant to be legal or professional advice nor should it be used as a substitute for such advice. You should seek legal advice for your specific circumstances before relying on any information herein. Contact JS Mueller & Co for any required legal assistance.
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This is of concern to me.
Following a series of break-ins and intrusions, our Owners Corporation (OC) discussed the installation of CCTV (“a great idea”) but collectively would not approve the expenditure involved. There is also no common property power supply that could host the installation.
I agreed to be the “Guinea pig” to install cameras on the external common-property walls of my lot. Two of these look along both directions of the two-way common-property access. I sought advice / opinions from the local Council, Strata Manager, various strata forums and regulations. Then I prepared a case to submit to the Owners Corporation., along with a proposed design layout.
The design ensured that the cameras did not look/record directly into the inside of any lot (or their yards) other than mine. This included a neighbouring strata block. However 2 of the cameras look along the common-property driveway, from a high angle.. I also offered a couple of access protocols: Footage would be released only via a request from the Strata Manager or the Police. This was put to the OC. There were no objections, and the installation was approved along with the protocols. No By-Law was required. I used a licensed installer, paid for the work and pay for ongoing electricity and maintenance.
Since then, access to footage has been provided twice, both on Police request.
Having gone to considerable lengths and cost to comply, I now wonder where I stand.
For NSW, I should like to understand the legal distinction between sections 7 and 8 of the Surveillance Devices ACT 2007, as that Act seems to outlaw all sound-recording and bugging (s.7), unless it is Court authorised for (say) Police purposes aagainst alleged criminals
To my reading of the Act, it seems that WITH Owners Corporation consent, an Owner’s CCTV might be allowed to be installed upon Common Property.
BUT particularly, what if the CCTV records and saves both sound and visual images ?
Does that mean that ‘deaf’ CCTV might be consented to under section 8, but any CCTV that also re cords a sound track would be barred alltogether by section 7.
I also found that separately the NSW Police encourage people and businesses to register their CCTVs – probably so that the Police might legally use those recordings as evidence.
The 2007 ACT seems predominantly to regulate NSW Police (and Ambulance) CCTVs and Body-cams. It is ironic that the ACt wants to control their (silenced) installation, but the Police want to use the data for prosecutions.
Meanwhile the NC&AT threaten security-minded strata folk with the 2007 Fines and Imprisonment – in 2023 the NSW criminal-world just gets crazier and more of a worry.
Police seek helpful ‘dash-cam’ footage at the drop of a hat now !
I keep asking our strata committee for a plan of where the CCTV cameras are, on our apartment block. I also have asked on numerous occasions for them to tell me when the monitors are, she has access to the monitors and in what circumstances do they access the footage.
I have asked via email and in person, to no avail. The committee members simply will not answer my questions.
They tell me that they will bring it up at the next general meeting. I feel this is just a tactic to stall telling me the information. It is really a worry that something is being covered up.
Are we able to install cameras inside pointing outwards as cameras are motion detected it wouldnt record but would be a good deterrent.
Yes it is interesting, our bylaw 5 regarding “damage to common property” also states “Damage to common property’ part 3 “This bylaw does not prevent an owner or person authorised by an owner from installing (a) any locking or other safety device for protection of the owners lot against intruders and (c) any structure or device to prevent harm to children.
Part 4 states “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”
Part 5 states “Despite section 106 of the SSMA the owner of the lot will maintain and keep in a state of good and serviceable repair any installation or structure referred to in clause (3) that forms part of the common property.
Hence, it would seem that if the cameras are installed on her units walls, have no sound, are installed by a registered and licenced security company, have evidence that the Police have checked their installation and confirmed no privacy issues, are only aimed at her backyard and driveway outside her unit, she’s prepared to sign a bylaw for maintenance and given that she is obviously living in fear that the cameras would be classified as a safety device to deter intruders. Would that be correct?
Thanks for the thought-provoking article
It also interesting to note that the first decision (Ghabour) which was decided on 26 February 2019 was only made available on NSW case law online about 17 May 2019 (which means it was not known to the public) and that the second decision of Lam was heard on 22 March, decided on 30 April but then published online about 17 May. It is also interesting to note that the Surveillance Devices Act has only been referred to in Ghabour and Lam. It wasn’t mentioned in Lai. My knowledge of this is that I was the strata lawyer acting for Lam but Ghabour was not known on the date of the hearing, Michael Pobi.
It is interesting that in both cases the Member did not include the full text of s 8 of the Surveillance Act>
8 Installation, use and maintenance of optical surveillance devices without consent
(1) A person must not knowingly install, use or maintain an optical surveillance device on or within premises or a vehicle or on any other object, to record visually or observe the carrying on of an activity if the installation, use or maintenance of the device involves:
(a) entry onto or into the premises or vehicle without the express or implied consent of the owner or occupier of the premises or vehicle, or
(b) interference with the vehicle or other object without the express or implied consent of the person having lawful possession or lawful control of the vehicle or object.
Key to this section is having permission (consent) to enter onto or into.