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In the recent decision of Benoit De Tarle v The Owners Corporation Strata Plan 576 [2022] NSWCATAP 77 (22 March 2022), the NSW Civil and Administrative Tribunal’s Appeal Panel dismissed an appeal by a lot owner who sought an order from the Tribunal (NCAT) that he be granted access to the CCTV footage from a building manager covering a number of different dates for an area where it is alleged his motor vehicle was damaged when parked in the owners corporation’s car park.

The building manager refused to provide the CCTV footage to the owner without a formal request from the owners corporation or the NSW Police was provided.

The Tribunal’s Decision at First Instance

The lot owner (appellant in the appeal) sought an order from NCAT that he be granted access to the CCTV footage which he asserted existed and was in possession or was under the owners corporation’s control. The lot owner also sought an order under section 232 of the Strata Schemes Management Act 2015 (“SSMA”) which would “entitle him to view CCTV footage at any time in the future”.

The lot owner submitted that the CCTV footage was a record of the owners corporation which was required to be retained for 7 years under s 180(1)(a) of the Strata Schemes Management Act 2015.

Unsurprisingly, the Tribunal dismissed the lot owner’s application for the order he sought because the Tribunal was satisfied that the CCTV footage did not exist. The owners corporation’s evidence was that the CCTV footage had been overwritten. Accordingly, the Tribunal determined that there was no use in making an order for the production of records that did not exist.

The Tribunal also determined that the lot owner was not entitled to future CCTV footage as sections 182 and 188 of the SSMA only entitle inspection of existing documents, the owners corporation’s policy of only releasing CCTV footage where there had been a formal request by the strata or the police, was reasonable and the prior authorities did not “provide support for a right to inspection in relation to CCTV footage that does not relate to a matter that has been reported to the police”.

The Appeal Panel

Dismissing the lot owner’s appeal, the NCAT Appeal Panel held, amongst other things, that:

  1. NCAT would still not have made an order granting access to the CCTV footage even if NCAT failed to have regard to the emails that allegedly demonstrated that the CCTV footage still existed.
  2. The CCTV footage was not a record of the owners corporation for the purposes specified in section 180(1) of the SSMA.
  3. It is a matter for the owners corporation to resolve to clarify the rights and entitlements of lot owners to access CCTV footage having regard to legislation such as the Surveillance Devices Act 2007 (NSW).
  4. The NCAT Appeal Panel has no jurisdiction to provide either an advisory opinion or grant declaratory relief under section 75 of the Supreme Court Act 1970 (NSW).

Key Takeaway

The Appeal Panel’s decision is a timely reminder for owners corporations that have installed or desire to install CCTV cameras in common property car parks and garage areas to consider what policies and procedures they should adopt when it comes to the issue of access to CCTV footage by lot owners to avoid legal disputes.

Consideration should be given to preparing and registering a CCTV footage by-law which addresses the following non exhaustive list:

  1. Access rights to the CCTV footage by lot owners, members of the strata committee, the strata manager and other parties.
  2. The fees and charges to access the CCTV footage.
  3. Who will provide access to the CCTV footage?
  4. The duration the CCTV footage will be held and by whom.
  5. When will the CCTV footage be overwritten?
  6. Requirements to provide access to the CCTV footage to NSW Police.
  7. Surveillance Devices Act requirements.

If you need advice and/or a CCTV footage by-law, our specialist strata lawyers can help.

Disclaimer: This is commentary published by Pobi Lawyers for general information purposes only and should not be relied upon as specific legal advice. You should obtain your own legal advice specific to your circumstances before you take any action or otherwise rely upon the contents of this article. The content of this article is subject to change.