Costa Del Mar [2006] QBCCMCmr 43 (3 February 2006)

Number of Scheme:	25241
Name of Scheme:	Costa Del Mar
Address of Scheme:	18 - 20 O’Connor Street TUGUN QLD 4224

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

I hereby order that the application for the following orders:

1. Removal of the CCTV monitor installed by Mr. Terry Camp of unit 1.

2. A ruling that no CCTV or monitoring device can be installed if it views the private common area of "Costa Del Mar".

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0748-2005

"Costa Del Mar" CTS 25241

THE SCHEME

Costa Del Mar is a subdivision of 6 lots on a Building format plan. The regulation module applying to the scheme is the Standard Module.

APPLICATION

By application received by this Office on 24 October 2005, the applicant sought the following orders:
1. Removal of the CCTV monitor installed by Mr. Terry Camp of unit 1.

2. A ruling that no CCTV or monitoring device can be installed if it views the private common area of "Costa Del Mar".

BACKGROUND

This application relates to the installation of a security camera in the basement car park and installation of associated wiring by the owner of unit 1, allegedly without first consulting other unit owners. Throughout the application and submissions, the camera is referred to a closed circuit TV camera (CCTVC) which indicates that the camera is connected directly to a television monitor.

The applicant submits that the camera is installed on the face of unit 1’s southern garage and views part of the common property area across to unit 1’s northern garage. In order to access the internal stairs to the foyer, persons leaving the car park area must pass by the camera and vice versa.

The applicant advises that an extraordinary general meeting was convened on 8 September 2004 at which a motion was put forward for removal of the CCTVC but was not carried. While the minutes of the meeting record that there were 6 votes (out of 6) against the motion, the applicant advises that there was 1 vote in favour of the motion, four votes against and 1 abstention. More recently the matter was raised at a body corporate committee meeting.

Further, the applicants submit that there is no greater risk of criminal activity in the basement area of this scheme than in any other property and sum up their concerns in the following terms:

" It is entirely, inappropriate, in the nature of nuisance/ voyeurism, likely to be ineffective, and quite likely an invasion of residents’ and tenants’ privacy for one owner to be able to view at his leisure an area of the common property over which they have no individual control, without being accountable for his actions".

The applicants also advise that the owners of unit 1 have installed a roller door on one of their garages and use the visitors’ car parking spaces to park their vehicles.

SUBMISSIONS

Submissions were received from the owners of lot 1, lot 2 and lot 5.

The owner of unit 5 raises similar concerns to those raised by the applicant. He regards the camera as an invasion of privacy and nuisance. Other concerns regarding unit 1 are that one garage space has been enclosed and that the owners of unit 1 use the visitor car parking spaces for their various vehicles.

The owners of lot 1 make the following submissions

The owners of lot 2 advise that they have no objection to the installation of the CCTVC as it contributes to general security of the car park.

JURISDICTION

Section 276(1) of the Act 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 the 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)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

DETERMINATION

It is not disputed that the camera is installed on the face of unit 1’s southern garage and views part of the common property area across to unit 1’s northern garage. As this is a building format plan, it is probable that the CCTV is located on common property and installation of such a device requires the approval of the body corporate. However I note that motions to remove the CCTV, put to both a general meeting and committee meeting have been defeated.

The next matter for consideration is whether the use of the CCTVC involves a breach the Act, particularly section 167 which provides as follows:

167 Nuisances
The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that--
(a) causes a nuisance or hazard; or
(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

I appreciate that some residents of this scheme may experience a degree of discomfort and apprehension in being filmed while entering and leaving the car park area, and indeed, one could question the efficacy of the CCTV camera as a security measure. For example, it could be argued that the boat would be more secure in a locked garage or removable items in the boat could be placed in a secure area.

On the other hand however, I do not believe that in the present circumstances there are sufficient grounds to find that the CCTV camera is causing a nuisance or is interfering unreasonably with the use or enjoyment of the common property.

To be actionable, I believe that a nuisance must involve an unreasonable interference with a person’s use or enjoyment of their lot or common property. Examples of actionable nuisance include an unreasonable interference caused by smoke, water, offensive smell and noise.

While there is increasing legislative and judicial awareness regarding the impact of video surveillance on personal privacy, recent case law indicates that the following elements need to be present in order to make a breach of privacy actionable^[1]:
(a) a willed act,
(b) which intrudes upon the privacy or seclusion of another,

(c) in a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities,

(d) and which causes the other person detriment in the form of mental psychological or emotional harm or distress or which prevents or hinders the other person from doing an act which he/ she is lawfully entitled to do.

Finally I note the concerns raised by the applicant regarding the enclosure of a garage space and the use of visitor car parking spaces by the owners of lot 1. In this regard I suggest that the applicant peruse the by-laws for the scheme to determine whether by-laws have been complied with.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Costa Del Mar [2006] QBCCMCmr 43 (3 February 2006)