Bartlett Lodge [2003] QBCCMCmr 587 (20 June 2003)

Last Updated: 12 September 2007

REFERENCE: 0791-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	1421
Name of Scheme:	Bartlett Lodge
Address of Scheme:	108A Charters Towers Road HERMIT PARK QLD 4812

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Alan James VALENTINE, as the owner of Lot 3,

C G YOUNGI hereby order that within two (2) months of the date of this order, Robert James Smail, as the owner of Lot 2, must remove and keep removed the multiple-view security camera from the external wall at the front of the lot.

I further order that Smail may on the authority of this order install a fixed view security camera on the front external wall provided that, as much as is possible, its focus is on the area immediately outside the front entrance of the lot and it only provides a view of that area of common property outside of Lot 2.

I further order that the fixed security camera installed on the back external wall of Lot 2 may remain in its present position.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0791-2002

"Bartlett Lodge" CTS 1421

The applicant, Alan Valentine of Lot 3, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"Recently the owner of Unit 2 installed two security cameras front & rear of his unit without getting the approval of the Body Corporate & were installed on the common property. We feel that they are an invasion of privacy as the camera in front has audio as well as visual & the one at rear only has visual & we believe they should be removed."

JURISDICTION:
This is a dispute between an owner (the applicant Valentine) and another owner (the respondent Robert James SMAIL, the owner of Lots 1 and 2), concerning the installation of security cameras on common property for the benefit of a lot owner without the authority of the body corporate. This is a matter falling within the disputes resolution provisions of the legislation (see sections 227, 228 and 276 of the Act).

General powers of an Adjudicator in making an order:

Section 276(1) provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

a)	a claimed or anticipated contravention of the Act or the community management statement; or
b)	the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or
c)	a claimed or anticipated contractual matter about –
(i)	the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or
(ii)	the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).

APPLICATION AND SUBMISSIONS:

In accordance with section 243 of the Act, a copy of the application was provided to the respondent Smail, and, through the secretary, to the other owner (Colin Fairbrother of Lot 4), with an invitation to each to respond to the matter of dispute raised in the application. The respondent Smail made a submission. The applicant Valentine did not exercise his right to view the submission and lodge a written reply (see sections 246 and 244 of the Act respectively).



The brief facts of the matter are as follows. The respondent Smail rents out Lot 1 and resides in Lot 2. Without the permission of, or prior notice to, the body corporate, Smail installed a security camera at the rear and the front of Lot 2, both being attached to the outer surface of the external walls of the lot. The front camera has both visual and audio facility (and a video recording facility) while the rear camera has visual only. The rear camera is in a fixed position while the front can cover left, front and right views of the common property driveway area outside of the front of the lots.

At the annual general meeting held on 16 December 2002, the applicant and the other owner expressed their opposition to the presence of the two cameras on the grounds that they invaded their privacy. They felt spied upon when using the front area, and this feeling was exacerbated in knowing that Smail could video-tape their, and their guest’s, movements. A motion to have them removed was lost on the respondent’s two dissenting votes. The applicant states that Smail’s own tenant, Amy Tan, also opposes the presence of the cameras.

The respondent Smail states that he did not seek body corporate authorisation for the cameras, as he believed that both Valentine and Fairbrother would oppose him in the matter. In any case, he believes that the cameras are for the protection of his property and therefore he has a right to install them. He particularly wants them to be clearly visible to intruders for the deterrent effect. He said his concern was supported by a recent break-in of his tenanted Lot 1.

The respondent also states that Valentine himself had previously installed a security camera for a period of 18 months to 2 years over the front door of his unit. He also states that the previous owner of Lot 1 had installed a sensor light and no one had objected to its installation. Further, there are other uses made of the common property that the respondent does not believe have been authorised, for example, a coach light outside Lot 3, and a bracket outside Lot 3 to hang a birdcage. In summary, the respondent Smail regards the cameras as necessary security measures to deter intruders.

DETERMINATION:

"Bartlett Lodge" was established as a building unit plan (now termed a building format plan) on 8 September 1982, and comprises four residential lots. Both the Contribution and Interest Schedule lot entitlements are equal across owners. Under the transitional provisions of the new Act, this body corporate is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (hereafter "the Standard Module").

I have recently decided a similar dispute in respect of a fixed camera over the front door of a unit in a high-rise building format plan (which means the external wall surface is common property) and I will quote the relevant passages from my reasons to the order given in respect of that dispute. It is analogous to the situation of Smail’s cameras even though it relates to a front door in a hallway rather than a driveway, and a fixed camera whereas Smail’s front camera is one than can traverse left, front and right. The relevant passages (updated with new section numbers introduced in 4 March amendments to the Act) are as follows -

Owners hold ownership of the common property as tenants in common and can use the common property in such a way that it does not interfere unreasonably with another occupier’s use or enjoyment of either their lot or the common property (see section 167 of the Act). Additionally, section 94 of the Act provides that the body corporate administers the common property but must do so "reasonably". Adjudicator’s have favourably applied these provisions where owners wish to install such items as a television antenna or dish, a roof ventilator ("whirlybird"), or a solar panel, on the roof or some other area of common property. The basis for this view is that: the items are of a common utility nature that are in general use in the community; and their installation or attachment usually involves a small, unused area of common property and therefore does not create an interference. The types of items that might be recognised along with those already specified may expand with new technology or cheaper domestic versions of existing technology.

A security camera installed on the common property outside an owner’s lot could, in my opinion, fall within the appropriate class of items. Home security is a legitimate concern of homeowners even those living in a high-rise unit block such as "Surfers Hawaiian" where intruders are still able to obtain access despite building security measures. Home security systems, including intercom and camera surveillance, are becoming more common in the wider community and, providing some basic conditions are met, the benefit of surveillance should be available to unit owners also.

These conditions, in my opinion, are: (1) that the camera is not intrusive of others privacy; and (2) it is made as unobtrusive as possible.

I have seen the camera in question. It is of small size, coloured black, and is located directly over the respondent’s door.

In regard to (1), it appears fixed in a position to observe persons directly outside the door. Obviously persons using the corridor to reach other units will be able to be observed to some extent, however to ensure that this peripheral capture of passers-by is at a minimum, I have included a provision in my order to regulate this aspect.

...

For the foregoing reasons, I am able to reach a decision without having to refer to the by-law relied on by the respondent. Though I do not have to decide the application of By-law 5(2), namely whether the security camera constitutes a "safety device to protect the lot against intruders", it is my opinion that the words are wide enough to admit of its coverage.

My order is therefore that the respondent may have the benefit of a security camera, however the current camera is not acceptable because its colour makes it detract from the appearance of the common property corridor. The camera should be either replaced with one colour coded to the walls, or of a white or cream colour, or, providing it can be done to a satisfactory standard of appearance, painted accordingly. If these changes are not completed within two months then the respondent should remove it. If the respondent does not remove it, then the body corporate may, after notice to the respondent to that effect.

The central point in that determination, which is equally applicable here, is that I consider a lot owner has a right to place a security camera outside their front door (or back door for that matter), on part of the common property wall, but the camera must be a fixed one that merely allows the owner to view persons in the immediate area outside his door. This will result, as stated in the quote, some peripheral observation of areas beyond either side of the front door area, however that must be kept at a minimum. This would mean that a forward looking lens and not a multiple or fish-eye lens, must be used. (Also note that as the quoted dispute concerned an internal building area, I considered colour co-ordination of the camera (rather than a stark black and metal camera) was important – I do not consider that is an issue in an outdoor situation such as in the present dispute).

This policy allows for the placement of the fixed camera at the rear of Lot 2, but does not encompass the type of camera used outside the front door which can observe left and right as well as forward. Accordingly I have ordered the removal of the front camera, however I have also made provision for it to be replaced with a fixed camera as is permissible under the policy. While it will not have the same area of scan, it will provide sufficient security for Lot 2 and is, as Smail prefers, visible to intruders to provide a deterrent effect.

For the benefit of all parties, I would point out that as the camera is installed on common property, section 121 of the Standard Module provides that the body corporate may carry out work required under an adjudicator’s order that has not been complied with, and recover the cost of the work from the relevant owner. I have allowed the respondent a reasonable period to remove and if necessary replace the camera with a fixed version. I also point out to the respondent that it is not sufficient for him to state that he will use the current camera only in a forward view mode – this does not meet the requirements of my order. There will be a cost to the respondent in the removal, and the replacement if he chooses that course, however he should have sought advice prior to purchase and installation.