This article is about neighbours and CCTV camera privacy in NSW. It covers the residential security cameras laws, whether it’s a crime to record footage on security cameras and what can be done if a neighbour is pointing a security camera at your lot. It may just be as simple as planting a tree.
Introduction to Residential Security Cameras Laws
We recently reported about an NCAT case in which a lot owner was ordered to remove CCTV cameras she unlawfully installed on the common property of a strata building in breach of the by-laws and strata laws.
But what happens when a next door neighbour whose property is not part of your strata scheme (and who is not bound by by-laws and strata laws) installs a CCTV camera that peers into your home?
What can you do about that?
Is there a right to privacy?
There is no general right to privacy recognised by the common law.i This means that, under the common law, a person is not able to accuse their neighbour of infringing their privacy or insist on their neighbour removing a CCTV camera to restore their privacy.
Is there a trespass?
The laws of trespass can be used to prevent a person from entering, or in other ways trespassing on, the land of another person, including by trespassing into someone’s apartment. But the installation of a CCTV camera on a neighbouring property is not a trespass.
Is there a nuisance?
The common law of nuisance does not prevent a person from overlooking another’s home or taking photographs of another person.ii This means that a person cannot argue that their neighbour is committing a legal nuisance by pointing a CCTV camera at their apartment.
Uncertainty in the law?
There have been some comments made in the High Court of Australia from time to time that a tort of privacy may exist in Australian common law or that there is no absolute and unrestricted right to spy on another person under the common law and that by doing so the spy is committing a nuisance.iii
There have been some comments made in the High Court of Australia from time to time that a tort of privacy may exist in Australian common law or that there is no absolute and unrestricted right to spy on another person under the common law and that by doing so the spy is committing a nuisance.iiiHowever, the better view is that there is currently no right to privacy under the common law and the law of nuisance does not prevent a person from recording the activities of their neighbour.
Residential security cameras laws
There is specific legislation that deals with surveillance devices such as CCTV cameras. This is the Surveillance Devices Act 2007.
Section 8 of that Act makes it an offence for a person to install or use an optical surveillance device such as a CCTV camera on premises, to record the carrying on of an activity, if the installation or use of the device involves entry onto premises without the consent of the owner or occupier of the premises.
In other words, section 8 of the Act makes it illegal for a person to install a CCTV camera on somebody else’s property without the consent of that other person. However, there is nothing in the Surveillance Devices Act 2007 that prevents a person from installing a CCTV camera on a property that they own or with the consent of the owner of that property and recording activities on a neighbouring property.
Is it a crime?
The Crimes (Domestic and Personal Violence) Act 2007 makes it an offence for a person to stalk another person with the intention of causing the other person to fear physical or mental harm (see section 13). Stalking includes watching (presumably by means of a CCTV camera) a person’s place of residence.
However, it would a rare for a neighbour to install a CCTV camera with the intention of causing a person to fear physical or mental harm.
What about planning laws?
In some cases it might be possible that the installation of a CCTV camera requires some form of planning approval such as a development consent or complying development certificate. If so, it might be possible to have the camera removed by action taken through the local council, or even the Land and Environment Court, if the camera was installed without the required planning approval.
So what can be done about neighbours pointing CCTV cameras at your lot?
The most sensible approach is to approach the neighbour who has installed the CCTV camera and ask him or her to remove it or reposition it. In many cases, common sense will prevail.
If it does not, other, more creative steps would need to be taken, for example, planting trees and shrubs to screen the apartment from the view of the CCTV camera, or taking action against the neighbour if any planning laws have been contravened.
This post appears in Strata News #295.
Have a question or comment about privacy with CCTV cameras, residential security cameras laws or something to add to the article? Leave a comment below.
References:
- Wainwright v Home Office [2003] UKHL53
- See Bathurst City Council v Saban (1985) 2 NSWLR 704
- Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; Victoria Park Racing and Recreation Ground Co Ltd v Taylor (1937) 58 CLR 479.
Read next:
- NSW: Q&A Handling a False Accusation of Privacy Breach
- NSW: CCTV – Who is Watching?
- NSW: CCTV Cameras in Strata & Community Title Schemes – Can you install a CCTV camera?
Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E. [email protected]
P: 02 9562 1266
Disclaimer: The information contained in this article is provided for your personal information only. It is not meant to be legal or professional advice nor should it be used as a substitute for such advice. You should seek legal advice for your specific circumstances before relying on any information herein. Contact JS Mueller & Co for any required legal assistance.
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We have a situation where a neighbour has converted their 2 story (sloping block) garage into a living space. This has meant that now a window approximatly 3 to 4 m above ground looks down into our yard and bedrooms. We have found the neighbour very aggressive in the past. Along the boundary fence there used to be a climbing fig vine which we believe was poisoned by the neighbour as they had complained about it and it seemed to die from the top down. Climbing figs are notoriously hardy and so we decided to dig out the roots and replace it with a plant that would not attach to the fence. We planted Lilly pillies a few years ago and they had just started to grow above the fence line. On the weekend we noticed the top part of the screening hedge dead. It appears that the plants have been poisoned. We do not want to aggravate these neighbours as they have threatened us in the past, we want screening and we feel that the poisoning has to stop. Our kids eat the Lilly Pilly berries so we are concerned. Some people have suggested installing a camera to get evidence of future poisoning. I however questioned whether this would be legal as it would have to point onto both sides of the fence (I don’t think the ‘Poison spray’ would be seen on a camera. Please advise on what you think is acceptable?
Hi Rose
In this instance, it would be best to seek legal advice. Your local council may be able to assist you in dealing with neighbour disputes. Please note: This site provides information based on strata title legislation and happenings within strata complexes.
Is it legal my unit mate installed CCTV at the living room without my consent ?
Hi Tin
We only assist with issues occurring on common property. I’m not sure about your situation, but you may be able to seek assistance from NSW Fair Trading.
My neighbour has a cctv camera pointing into my son’s bedroom. Is this legal?
Is it illegal to put a sign at my unit window facing the window of my neighbour across my unit saying in my sign that they are intruders and trespassers?
My neighbour is determined to get me evicted or moved. She has been numerously making complaints about the littlest things to strata and now has
a camera up on their window facing my front door and in view of common area (carpark). I have notified strata but its been a month and the cameras still up. When I put one up I got told to remove it immediately. Previously the neighbour had filmed someone living next door to her constantly which caused her to move so now she’s doing the same to me. I have no privacy in my home I pay rent to live in and havent brought my children over ever since. I feel so helpless as I feel strata is favouring this neighbour since she’s an owner and attends strata meetings. Also the most recent complaint was there’s illegal activity happening at my place because I had the garage closed and the nosey neighbour couldn’t sticky beak so strata contacted ny real estate agent which resulted in them issuing me a breach in tenancy. Can someone please tell me how strata has the power to make such allegations which are serious enough to get me evicted just from a hearsay of a vindictive neighbour? I mean surely the strata manager would have picked up by now that this neighbour is constituting harassment by complaining about every petty little thing but still goes ahead to damage my reputation without even hearing my side of the story how is this allowed? Am I being bullied by the strata manager as well as getting harassed and stalked by this crazy neighbour? Someone please help me. Thanks in advance.
You can raise the issue with your property manager (where you pay rent) and through them, to the owner and get them to talk to the strata manager/Strata Committee. The Strata Committee could intervene and reconcile the two parties if they are active enough. Given the legal grave area privacy issue is in, an amicable solution is the best way to go.
I currently have a apprehended violence order against a neighbour .She has installed CCTV cameras on her property but has two of the cameras directly aimed at my front yard of my property.Is this classed as stalking?
My neighbour has put in two cameras . We live in a old motel permanant rentals. These cameras are facing the car parking areas also. Now the cameras are not a meter away from my front door. This woman is constantly stalking and sits watching all us neighbours for quite some time. The cameras are knew. We have no privacy. She listens into our private phone calls and conversations. if i have visitors its the same. None of us 7 other tennants agree to being watched 24/7 & video tapped . The real estate/landlord refuses to listen to all of us other tennants. I should be able to walk in & out of my own front door with my privacy respected. This woman is a nightmare what can be done . Cameras within less than a meter is way too close. We dont have break ins so thats not a issue.
In my apartment block in WA, the Council of Owners have passed a by law which states “Policy re access to CCTV is formulated as follows: 1. To police on request. 2. To a Council of Owner as approved, to determine whether specific footage should be referred to the Police. 3. Every quarter to check the cameras are working and for maintenance purposes by the installers. Two members of the Council of Owners to have key access to the room where the CCTV computer is kept and to monitor equipment for the above purposes.” I am concerned this is a breach of my privacy because this policy allows two members of the Council of Owners to access the CCTV computer at any time to “monitor the equipment” and any member of the Council of Owners can review specific footage (when approved). I would prefer an external party (not an owner) only be allowed to view the CCTV. Is this a breach of my privacy?
I agree that an external party (non owner) should be the only entity to access footage obtained on a CCTV. I hate CCTV for privacy reasons and for other residents to have access to the coming and goings on the common property is unsettling. The two people who have access to our CCTV don’t even need approval.
At least the strata management should check randomly, through computer history, who has accessed the CCTV and why, then bring this to the AGM.
I had non-activated camara sitting on my dresser thinking it would deter this girl i was dating from stealing my cash and she activated the camera to her phone and recorded me in my bedroom for over two weeks. She down loaded it then deleted my whole camara program. Is this illegal and if it is what can she be charged with.
Hi John
Your question falls outside of the scope of this site. We suggest you seek legal advice.
I have a camera installed by professional person .The camera is protecting the side of my property, but also views a part of next door near there laundry am i in breach of the law
My neighbour has installed a camera under his eaves looking into my pool, surely this isn’t allowed?
have similar situation quite concerning considering i have young children …have u resolved this in anyway ?
What if I have grandchildren who visits regularly ? I really don’t want them recorded and I don’t want them to stop coming to visit because I have limited mobility ?
My neighbour has installed cctv filming my driveway and the gated entrance on to my premises without my consent. Is this illegal and what can I do about it? I have also asked them to remove it and they have refused.
A resident has installed CCTV under the eves of their lot, some pointing into their backyard, but one camera is pointing towards common property, towards their car that is parked in breach of the by-laws as it is parked on common property without permission. Is it legal for a resident to install CCTV so without the permission of the Owners Corporation? Is it legal to install CCVT at all?
Hi David
Regarding the CCTV camera, as stated in the article above: “There is no general right to privacy recognised by the common law. This means that, under the common law, a person is not able to accuse their neighbour of infringing their privacy or insist on their neighbour removing a CCTV camera to restore their privacy.”
However, when it comes to the installation of the camera, did the resident seek approval from the Owners Corporation? Try this article: NSW: Q&A Handling a False Accusation of Privacy Breach
Is it legal for an owner to look up and view their security camera that house sound when they have tenants in the home who have no knowledge of this?
Antisocial acts and breaches of by-laws have reduced by 80% since I installed 32 CCTV cameras at choke points in the block I manage. I’m going to install another 32 cameras as soon as possible as this will only make it even safer and more orderly. I now manage a block of units where people behave themselves in a social and civilised way, and those that don’t soon get shown the door.