Brooklodge [2004] QBCCMCmr 109 (20 February 2004)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Brooklodge community titles scheme 13137:

I hereby make the following orders by consent, regarding a video surveillance camera currently installed within a garage forming part of Lot 1:

1. "Rod Kendall (The Body Corporate Secretary) and Derek Webb (the Owner of Lot 1) agree to alter the camera angle so that the field of view shows only the entrance to Garage 1 and a few square metres in front of and slightly to the side of garage 1"; and

2. "Further that the field of view will not show the property of other owners or the common property beyond that allowed for above."

I further order that in carrying out of the above agreement, the Body Corporate and the Owner of Lot 1 shall comply with any relevant provisions of the Body Corporate and Community Management Act 1997, the Body Corporate and Community Management (Standard Module) Regulation 1997, any other relevant laws, and the community management statement for the "Brooklodge" community titles scheme.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0533-2003

"Brooklodge" CTS 13137

On 11 August 2003, the Applicant (the Body Corporate for Brooklodge) submitted a dispute resolution application to the Commissioner for Body Corporate and Community Management pursuant to the Body Corporate and Community Management Act 1997 ("the Act").

In the application, the Applicant sought the removal of a particular surveillance camera, purportedly installed by the Owner of Lot 1 (the Respondent).

From the material before me, I understand that the Owner of Lot 1 has installed a video surveillance camera within the garage of Lot 1, and a sensor for the security camera just outside Lot 1’s garage door.

From a video recording provided by the Respondent, it appears that at the time, a relatively small aspect of Lot 1 was being recorded by the surveillance camera. At the time, the camera primarily focused on the common property driveway, and a number of other lots are clearly within the camera shot.

The Applicant objects to the operation of the surveillance camera. In general terms, the Applicant considers that the camera compromises the privacy of other lot owners and occupiers, and is a nuisance.

In his submission, the Respondent argues that the surveillance camera provides him with necessary security, and is not used for any inappropriate purposes.

As mentioned above, this application was lodged on 11 August 2003.

On 25 August 2003, a member of this Office wrote to the Applicant on behalf of the Commissioner, and requested the Applicant to provide further information and material about the application. The Applicant provided the further information and material under cover of a letter dated 4 September 2003. This letter has been included as part of the supporting grounds to the application.

On 10 September 2003, the Commissioner invited the Respondent, and all other owners of a lot included in the scheme, to make written submissions about the application. The Respondent provided a written submission opposing the application. The Respondent’s submission was accompanied by a video recording taken from the surveillance camera in dispute (mentioned previously). The Owner of Lot 5 has made a written submission supporting the application.

Pursuant to section 246 of the Act, the Applicant was provided with copies of the submissions made about the application. The Applicant has provided a written reply to those submissions in a letter dated 5 November 2003.

On 13 November 2003, and in accordance with section 248 of the Act, the Commissioner made a dispute resolution recommendation that the application should be resolved by way of dispute resolution centre mediation. As a result, the application was referred to a Dispute Resolution Centre of the Department of Justice and Attorney-General ("the DRC").

In a letter dated 11 February 2003, the DRC advised the Commissioner that the dispute had been settled at a mediation session held on 5 February 2004. According to the letter, the parties requested and authorised the DRC to provide the Commissioner with a copy of the mediated agreement.

It is apparent that the parties agreed to refer the mediated agreement to an adjudicator for a consent order. The Commissioner has referred the application to me to decide whether a consent order should be made.

Section 276(1) of the Act authorises adjudicators to make just and equitable orders to resolve disputes in community titles schemes about:

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

The Act also contemplates adjudicators issuing orders to resolve disputes with the consent of the parties^[1]. However, it is important to note section 276(5) which provides that an adjudicator’s order made in a form agreed to by the parties to the application following mediation or conciliation:

Generally speaking, mediated agreements are confidential. However, it is clear that I cannot consider a request to convert a mediated agreement into a consent order without restating the terms of the agreement. The written agreement provides the following:

"Rod Kendall (The Body Corporate Secretary) and Derek Webb (the Respondent) agree to alter the camera angle so that the field of view shows only the entrance to Garage 1 and a few square metres in front of and slightly to the side of garage 1.

Further that the field of view will not show the property of other owners or the common property beyond that allowed for above.

We agree to refer this agreement to an adjudicator appointed under the Body Corporate and Community Management Act 1997, as a consent order pursuant to section 276 of the Act."

The issue of video surveillance cameras is not a matter that is specifically addressed in the Act, or regulation modules. Generally speaking, I can see no obvious, specific reason why it would be unlawful for a lot owner to install a camera to surveil their own lot. However, and while not deciding the matter, I can certainly imagine how an owner’s systematic and continuous electronic surveillance of common property and other lots could be a nuisance and a source of discomfort to other owners and occupiers lawfully and reasonably using their lots and the common property.

In this case, the parties have agreed that the surveillance camera will be adjusted to focus on the garage of Lot 1, and some very limited aspects of the surrounding common property. The parties have clarified the agreement by stating that the camera will not record other lots, or other parts of the common property.

In the circumstances, it seems to me that this agreement will significantly mitigate any nuisance caused by the surveillance camera to other owners and occupiers. I am unaware of any obvious reasons why the mediated agreement would be unlawful.

For these reasons, I have made an order reflecting the terms of the mediated agreement. However, I have made a further order that in carrying out the agreement, the parties must act in accordance with any relevant provisions of the Body Corporate and Community Management Act 1997, the Body Corporate and Community Management (Standard Module) Regulation 1997, any other relevant laws, and the community management statement for the "Brooklodge" community titles scheme.

Number of Scheme:	13137
Name of Scheme:	Brooklodge
Address of Scheme:	15 Jones Street HIGHGATE HILL Q 4101

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Brooklodge [2004] QBCCMCmr 109 (20 February 2004)