This article is about CCTV cameras placed on the common property.
In the recent case of Stojilkovic v Whittle [2021] NSWCATCD 97, the Tribunal had to consider whether CCTV cameras placed on the common property constituted interference with the reasonable use of a lot or the common property.
After a history of conflict between the lot owners, including at least on AVO, the respondents installed security cameras. The applicants, who were also lot owners in the scheme sought orders for the removal of these cameras. A previous application to the Tribunal had been resolved when the Tribunal was advised that the cameras had been disconnected and the application was dismissed with no directives in relation to the cameras. Following this it was alleged that four cameras were affixed (or reaffixed) on the common property and that they filmed both common property and the applicant’s lot property.
In arguing that their security cameras were authorised, the respondents relied on by-law 5 which stated that the by-law did not prevent an owner from installing “any locking or other safety device for the protection of the owner’s lot against intruders or to improve safety within the owner’s lot”.
The Tribunal was not satisfied that the installation of the four cameras was authorised by by-law 5 nor that it was cosmetic works or minor renovations under sections 109 or 110 of the Strata Schemes Management Act 2015 (NSW) as both these sections excluded alterations that change the external appearance of a lot. There was no evidence that the camera installation had been approved by way of a special resolution prior to them being installed or that a request for four cameras had ever been put to the owners corporation. While a special resolution had been passed permitting lot owners to install security cameras within their lots on conditions in 2020 it did not retrospectively authorise the 2017 installation and the Tribunal was satisfied that the cameras had been installed without consent.
The next question was whether the cameras unreasonably interfered with the applicant’s use and enjoyment of their lot or the common property in light of the duty of lot owners not to cause a nuisance or hazard to occupiers of other lots as provided by section 153 of the Act. Unfortunately, the evidence of what the cameras captured was limited. The respondents claimed the cameras focused on their courtyard and the common property driveway. The applicants claimed the cameras followed their every move however there was no evidence to support this. The Tribunal found that two of the cameras focused on the common property driveaway but could not make a finding about the focus of the other two cameras. The Tribunal found that the filming by one lot owner of the common property driveway did interfere with the reasonable use of the common property by other lot owners and that if the other two cameras did film the applicants lot that they too would unreasonably interfere with the applicant’s enjoyment of their lot. As such the Tribunal ordered that the cameras filming the common property driveway be removed and the camera in courtyard. The door camera was permitted to remain and the Tribunal noted that the respondents could apply for permission for the courtyard camera to remain pursuant to the special resolution if they could provide evidence it filmed only their lot.
The lesson for lot owners and owners corporations from this case is that while security is important and it is possible for lot owners to obtain permission to keep a camera on the common property, a camera that focusses on another lot or on the common property can unreasonably interfere with the use and enjoyment by other lot owners or occupants of their lot and the common property and be in breach of the obligation not to cause a nuisance or a hazard under section 153 of the Act. We note that the Tribunal noted that filming of common property by an owners corporation was different to the filming of common property by one lot owner.
Allison Benson
Kerin Benson Lawyers
E: [email protected]
P: 02 4032 7990
This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.
This post appears in Strata News #538.
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This article has been republished with permission from the author and first appeared on the Kerin Benson Lawyers website.
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We have a small (8 lot ) self managed Strata. The building at ground level has two front doors to a fiyer and two rear doors to the same foyer. The garages are on this level in a horseshoe configuration where the 2 visitors carparks and driveway are.
When the doors are not closed at night we are subject to anyone walking in off the street and gaining entry to our stairwell. We have 2 levels. We have put up sensor lights around the gardens and doors in the hope trollers or undesirables are un nerved enough not to proceed. The building is also inbetween two streets so can be entered from 4 areas.
We would like to consider at least a camera covering the 2 main front entrances to the blick and encourage residents to shut the back doors. There is a keypad lock s,stem on the doors. We have found young people are in & out alot and do not like locking the front doors. A camera would also be helpful in a mandated mask wearing NSW Health Directive. A couole of tenants have fake cameras on their sofit to discourage access to their balconies.
It seems a reasonable concern , I am quite surprised the tribunal in this article ruled against some of the camera positioning. We have vulnerable people living here and feel cameras would be an excellent deterant . Not sure who the member is who gave this ruling perhaps they have not experienced theives ir violent offenders as unwanted wanderers at night.