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When an apartment resident decided to grow a “sauvage” garden on his balcony – filling it with soil and letting it grow wild – he claimed the by-laws allowed for planters and that was all he had.
The owners corp knew this wasn’t the case but how could they prove it? Without the owner’s permission, there was no way they could access the balcony to take pictures to prove it was an illegal installation.
And an order from the tribunal allowing them access might be impossible to get without some sort of proof.
“Aha!”, said one committee member, how about we use a drone – a radio controlled flying machine with a camera – to take a picture.
“Ah, but …” said another, real estate agents in South Australia have just been banned from taking pictures of properties with a drone. And anyway, said another, this would be an invasion of privacy, so we can’t.
Is this true? Yes and no. The SA agent was ordered to stop taking pictures because they didn’t have a license to fly a drone for commercial purposes. If they’d been taking the aerial shots of the property for fun, it would have been OK.
What about privacy? This is quite complicated, but there aren’t many restrictions on an individual taking pictures of anything, provided it’s not for lewd purposes and you aren’t actually on the person’s property without permission when you are taking the picture.
So could an enterprising strata manager or committee member fly a drone up there and take a few snaps?
Probably not, as corporations have to observe more stringent privacy laws and it could even be argued that they were flying the drone for commercial purposes.
You could “encourage” a tech-savvy 12-year-old to fly the drone and take pictures of everything he sees – which might just include the offending balcony.
But you’d want to warn all your residents that there was an eye in the sky … just in case. The problem with that is, then it’d be official and you’d be back to square one.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
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Doesn’t sound very good advice to me – unless the officers of the Owners Corporation wanted to end up before a magistrate.
In NSW it is illegal to take photographs of private property without the owner’s permission. It amounts to trespass. I encountered the situation when I had to take photographs of a garden that was common property, but within an owner’s lot. Police warned me to be careful not to frame the photo to include any of the owner’s property.
I believe the same thing would apply in other states, and using a drone to look in on an owner’s property would be a) illegal and subject to penalty if the owner complained; and b) inadmissible as evidence in the case about the garden in question – because it was obtained illegally.
I do not think that is correct
Have a look here
https://www.artslaw.com.au/info-sheets/info-sheet/street-photographers-rights/
or here
https://4020.net/words/photorights.php
To quote from this second site
In Australia most forms of “unauthorised” photography have in fact been authorised since the 1937 High Court decision in Victoria Park Racing v. Taylor (1937) 58 CLR 479 (at p.496). This was reaffirmed recently in ABC v Lenah (2001) HCA 63, where the Court ruled that despite the passage of decades since Victoria Park, any concept of a
Tort of invasion of privacy
still does not exist in Australia.As Justice Dowd put it with ruthless clarity in R v Sotheren (2001) NSWSC 204:
A person, in our society, does not have a right not to be photographed.
Good story but how did it end? What was the outcome over the issue with the balcony filled with dirt. Legal or not?
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