NCAT orders removal of security cameras on common property installed by lot owner

NCAT orders removal of security cameras on common property installed by lot owner

Please note that the information contained in this article is for information purposes only. It is not legal advice and should not be relied upon. You should obtain legal advice before you take any action or otherwise rely upon the contents of this article.

Introduction 

The owner of a lot in the strata scheme sought relief in the Tribunal pursuant to sections 24, 126, 131 and 232 of the Strata Schemes Management Act 2015 (SSMA). That relief was sought in respect of certain notices and directions issued by the owners corporation to the Applicant to remove two (2) security cameras which were affixed to the external wall of their lot and certain pot plants on common property adjacent to their lot.

Chronology of Events

• The Owners Corporation is a residential strata building.
• Strangers and passers-by have direct access onto the common property of the strata scheme. It is this concern which, by her actions, the Applicant has sought to address.
• There was a discussion at an AGM that the executive committee would look into the planting of shrubs on the border of the property to secure the area but no action has apparently been taken. The grounds remain open to the public to walk around and through, including up to the windows of the Applicant’s ground floor strata unit.
• The Applicant had disputes with other owners in the scheme.
• The Applicant wrote to the strata manager advising that her tenant was vacating the unit and that she intended to install security cameras.
• The Applicant states that she had a telephone conversation with the strata manager and was told “there should not be a problem” for the security cameras.
• Two security cameras outside the main bedroom of the unit and the kitchen of the unit were installed by the Applicant’s contractor. The cameras have no audio recording capability. The camera outside the kitchen window can zoom in and out. The camera outside the bedroom window is a fixed lens camera without the capability of zooming in or out. Both cameras require the cover to be taken off to move the lens around and, as currently installed, are directed at the ground area of the common property directly outside the Applicant’s unit. According to the Applicant, there is no audio recording and the cameras are motion-activated i.e. they require motion to be triggered and then record for a limited period of time only.
• Subsequently the Applicant received a telephone call from the strata manager stating that “the owners are not happy that the cameras were installed”.
• At at EGM the issue of the two cameras was raised informally.The owners corporation claims however that the Applicant agreed to remove the security cameras that she had installed or placed on common property since her return.
• The strata manager subsequently advised the Applicant of the following matters:
  • “You will have to have permission from the Owners Corporation prior to attaching cameras to common property walls.
  • A by-law will have to be registered, making you responsible for the maintenance of the Security Cameras.
  • You are and will be responsible for all costs associated with the installation and maintenance of the Security Cameras.
  • You will have to provide a diagram where the cameras are to be placed so that the Owners Corporation can approve.”
• The owners corporation claims that the Applicant failed to do this or comply with this email request and followed up with the Applicant by email. The Applicant replied that she was obtaining legal advice.
• The owners corporation served a Notice to Comply with a by-law on the Applicant, in respect of by-law 5 to remove the security cameras from the common property.
• The Applicant responded to the Strata Manager requesting that the owners corporation grant a stay in relation to the Notice issued to Comply with the by-law and a stay on the removal of the security cameras which had been agreed at the EGM, until such time as negotiations between the Applicant and the owners corporation can be resolved in good faith and without the need to commence legal action.
• The strata manager requested that the Applicant remove the cameras.
• As a result of this demand the Applicant commenced this application in the Tribunal.
• There was an EGM at which the Applicant sought:
  • A new by-law pursuant to s.141 of the SSMA to provide the owners corporation’s approval for her to install and maintain the security cameras.
• The Applicant included a detailed draft of the proposed special by-laws and the basis of her request for approval, which referred to security for the entire building and the previous failures to install plants or fencing in the north-east corner of the common property.
• The proposed by-laws and resolutions were not passed at the EGM.
• The Applicant gave evidence that the EGM did not properly consider her request, and that it was pre-determined.

Surveillance Devices Act 2007 (NSW)

• Section 8 of the Surveillance Devices Act states:
  • “A person must not knowingly install, use or maintain an optical surveillance device on or within premises … to record visually or observe the carrying on of an activity if the installation, use or maintenance of the device involves:
    • entry onto or into the premises … without the express or implied consent of the owner or occupier of the premises …”
  • Breach of s. 8(1) of the Surveillance Devices Act created a regulatory offence punishable by 100 penalty units or 5 years imprisonment in the case of a non-corporate defendant.
  • An optical surveillance device is defined as:“Optical surveillance device means any device capable of being used to record visually or observe an activity, but does not include spectacles, contact lenses or a similar device used by a person with impaired sight to overcome that impairment.”
• The Tribunal stated that as the owners corporation is the owner of the land which the Applicant seeks to record visually, and as entry onto that land without consent was required by the Applicant to affix the two security cameras to the common property wall of the owners corporation without its consent, it appears probable to the Tribunal that the two security cameras which the Applicant has installed on the common property external walls are “optical surveillance devices” for the purposes of the Surveillance Devices Act.

Tribunal’s finding

• The Tribunal considered that the application should be dismissed.

Ghabour v The Owners – Strata Plan No. 53284

Please note that the information contained in this article is for information purposes only. It is not legal advice and should not be relied upon. You should obtain legal advice before you take any action or otherwise rely upon the contents of this article.