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-discussed issue is the rights of lot owners and owners corporations to install their own security cameras.
Two recent NSW Civil and Administrative Tribunal (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, the owners corporation is entitled to require the security cameras be removed.
However, there are also lessons for owners corporations and strata managers, with the possibility that owners corporations and lot owners may commit an offence under the Surveillance Devices Act 2007 (NSW).
Case study 1: A couple of cameras
Ghabour v The Owners – Strata Plan No. 53284 [2019] NSWCATCD 18
In mid-2018, a lot owner moved back into her unit which had previously been let to tenants.
Due to her concerns about a level of “dispute” within the strata scheme, the lot owner installed two security cameras on the (common property) external walls of the building: the first outside the main bedroom of her unit and the second outside the kitchen.
The security cameras were motion-activated and recorded footage that was then stored on a hard drive.
Understandably, the unapproved cameras led to unhappiness among the other lot owners and the strata manager was instructed to advise the lot owner as such.
The strata manager then contacted the lot owner again, advising her that she would need specific permission from the owners corporation to attach the security cameras to common property walls.
With no response from the lot owner, the owners corporation served her with a Notice to Comply. Yet still, the lot owner did not act.
Finally, the owners corporation gave the lot owner a deadline by serving two Notices to Comply with the by-laws, one by-law in respect of removing the security cameras from the common property. The owners corporation also indicated that if she did not remove the security cameras by the deadline it would take steps to do so.
The lot owner then commenced proceedings with NCAT, obtaining interim orders restraining the owners corporation from removing the security cameras pending the ultimate hearing of the matter.
Following the hearing, however, the interim orders were revoked by NCAT and orders were made for the removal of the cameras.
NCAT’s decision referenced the need for approval to use common property as well as section 8 of the Surveillance Devices Act, which prohibits a person from knowingly installing, among other things, an optical surveillance device that records visual activity on or within premises that records the entry onto or into those premises without express or implied consent of the owner or occupier of the premises.
NCAT referred to a by-law in the building’s strata scheme, stating that an owner or occupier cannot drive nails or screws into, or otherwise damage or deface, any structure that forms part of the common property without the written approval of the owners corporation.
Since the lot owner had not obtained consent, NCAT had no difficulty in ordering removal of the cameras.
NCAT also referenced that in recording footage of persons outside of her lot, the lot owner is in breach of section 8 of the Surveillance Devices Act – punishable by a significant fine or imprisonment.
Case study 2: Half a dozen cameras
Lam v The Owners – Strata Plan No. 9562; The Owners – Strata Plan No. 9562 v Lam [2019] NSWCATCD 21
In another decision handed down recently, NCAT 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 three CCTV cameras facing the backyard; one facing the main entry door of her lot; one facing her garage door and parking spots and one facing the common property driveway and rubbish bins.
As in the first case study, the lot owner did not obtain the consent of the owners corporation before installing the cameras.
Once again, the owners corporation relied on its by-laws to prove its case at NCAT, along with section 8 of the Surveillance Devices Act.
In this strata scheme, the by-law prevented the installation or use of optical or audio surveillance on a lot, or on common property.
What can strata managers do?
Almost every owners corporation will have a by-law or by-laws preventing lot owners from installing surveillance cameras on common property without consent.
It is important for strata managers to advise owners corporations of the potential repercussions for individuals and corporations under the Surveillance Devices Act, and the need to observe relevant laws when it comes to the installation of security cameras.
If owners corporations take the step of installing security cameras themselves, they risk committing an offence under the Surveillance Devices Act.
Want more?
REINSW thanks Warwick van Ede and JS Mueller & Co for their contribution to this article.