![\"Sydney](\"https:\/\/insight.thomsonreuters.com.au\/legal\/wp-content\/uploads\/sites\/8\/2022\/05\/AU-WLAU-Article-Sydney-Jacobs-colour-1024x683.jpg\")
Bring in the CCTV<\/h2>\n\n\n\n
Driving over your neighbour\u2019s land to get to your own land or battle-axe property can clearly be fraught with potential conflict.<\/p>\n\n\n\n
\u201dIt’s well known in the law of easements for servient owners to get a bee in their bonnet, right or wrong, and to adopt various strategies like installing speed bumps to dissuade the dominant owner from driving too fast or erecting threatening signs or padlocks on gates to control traffic,\u201d explains Sydney.<\/p>\n\n\n\n
\u201cSome servient owners on occasion erect a CCTV to monitor rights of way on their land. But the dominant owner may perceive that (again, right or wrong) as disproportionate to the servient owner\u2019s legitimate security needs and thus as an invasion of privacy.\u201d<\/p>\n\n\n\n
When surveillance becomes actionable<\/h2>\n\n\n\n
So, what is the dominant owner\u2019s right of redress?<\/p>\n\n\n\n
\u201cWhether that installation of the CCTV is actionable by the dominant owner is a question that has to be asked against the background of the common law in Australia, which is that there is no overarching common law right to privacy,\u201d says Sydney.<\/p>\n\n\n\n
Although there\u2019s an assortment of Commonwealth and State legislation that offers people a right to privacy in relation to their data, that\u2019s where the law stops.<\/p>\n\n\n\n
\u201cThere’s no single law, as it were, of privacy, there’s no actionable tort of privacy. And so, the question then becomes if you are the dominant owner and are being photographed every time you pass and re-pass, does CCTV surveillance reach the point where it is actionable?<\/p>\n\n\n\n
\u201cAnd then, if so, what is the cause of action? Because you can’t simply go to court and say that you have a complaint that your neighbours are watching you. You actually have to articulate a cause of action.\u201d<\/p>\n\n\n\n
Tort of invasion of privacy<\/h2>\n\n\n\n
Which brings us to the law. A \u201cgem\u201d of a case that has lain hidden since 1995, according to Sydney, but has recently been dusted down and brought to light is Raciti v Hughes (1995) 7 BPR 14,837. Here the plaintiff was granted an injunction against a neighbour who had installed a CCTV with motion-triggered lights.<\/p>\n\n\n\n
Raciti left open the question of whether a tort of invasion of privacy, at least in so far as it might apply to natural persons, could be said to be a part of the Australian common law.<\/p>\n\n\n\n
Further, in Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; 76 ALJR 1, Justices Gummow and Hayne (Gaudron J concurring) observed that invasion of privacy can be actionable in nuisance if one\u2019s neighbour engages in \u201cwatching or besetting\u201d another\u2019s premises.<\/p>\n\n\n\n
But the law became even clearer recently when Raciti was followed in Au v Berlach [2022] NSWSC 81 where the cause of action identified by Kunc J is the law of nuisance.<\/p>\n\n\n\n
\u201cThis is a case where the servient owner in respect of a broadly worded right of way (Au), forming in effect the Berlach\u2019s driveway (\u201cthey\u201d being the dominant owners) to their otherwise landlocked property, erected many CCTVs,\u201d explains Sydney, quoting the judge at [117]-[118]:<\/p>\n\n\n\n
\u201cI respectfully agree with the analysis of the law in Raciti and accept \u2026 that it is applicable to the present case. By his own admission, Dr Au has set up an elaborate surveillance system designed to \u201csnoop\u201d on the activities of the Berlachs on the Easement and he and his wife spend \u201chours and hours\u201d reviewing the results. By reason of the distress that it causes the Berlachs, the Court finds that the use of the CCTV cameras is a substantial and unreasonable interference of their enjoyment of the Easement so that the cause of action in nuisance is made out.\u201d<\/p>\n\n\n\n
\u201cSo, the key thing to note when it comes to easement cases,\u201d says Sydney \u201cis that if the servient owner interferes with the rights granted to the dominant owner, usually that is actionable in nuisance, although one doesn’t have to necessarily show damage for it to be actionable.\u201d<\/p>\n\n\n\n
It’s important to note that merely installing some surveillance by the servient owner will not, or is unlikely to, be regarded as a nuisance.<\/p>\n\n\n\n
Remedies<\/h2>\n\n\n\n
Detailing the steps to remove the offending cameras or reduce their intrusion, Sydney outlines the two conventional remedies for nuisance: to seek an injunction to restrain the nuisance and an action for damages.<\/p>\n\n\n\n
\u201cBy far the most usual remedy is for the dominant owner to seek an injunction against the servient owner for either the repositioning of the cameras so that they face in another direction that isn’t so intrusive or the demobilisation of certain of the cameras or for some variant of that.\u201d<\/p>\n\n\n\n
Seeking damages, though available, is unlikely on its own to deliver the pressing and desired outcome which is to remove the intrusion.<\/p>\n\n\n\n
If the dominant owner were to receive an injunction from the Supreme Court and the nuisance continued, then they could move the court for orders declaring the servient owners guilty of contempt of court, which could lead to the issue of a fine or an arrest, until the contempt is purged.<\/p>\n\n\n\n
As both surveillance and property development increase at an unstoppable rate, we are likely to see more disputes in the future generated by their confluence.<\/p>\n","protected":false},"excerpt":{"rendered":"
Taking action against intrusive CCTVs in easement disputes, and protecting your rights to privacy. <\/p>\n","protected":false},"author":139,"featured_media":7162,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[1325,1691,648,1697],"tags":[1761,1760,339],"insight_job_role":[1315,1573,1457,614,1363,628],"insight_practice_area":[],"class_list":["entry","author-virginiag","has-excerpt","post-7161","post","type-post","status-publish","format-standard","has-post-thumbnail","category-legal","category-legal-marketplace","category-legislation-and-case-law","category-litigation","tag-disputes","tag-invasion-of-privacy","tag-legal-know-how","insight_job_role-barrister","insight_job_role-lawyer","insight_job_role-managing-partner","insight_job_role-partner","insight_job_role-principal","insight_job_role-solicitor","hentry"],"acf":[],"yoast_head":"\n