In this article we will focus on easements which provide driveway access to otherwise land-locked properties. But these issues may also be relevant to, for example easements for parking or scaffolding.

Property access on neighbour’s land

In the absence of an actionable tort of invasion of privacy,  the legal path for those who have the “the right to pass and repass” land to access their own property (ie the dominant owner) and who become subject to CCTV surveillance by the person who owns that land (ie the servient owner) has been unclear.

“People can be very protective over their land. And one’s neighbour using land that belongs to you can enrage passions,” says Sydney of contentious action taken by servient owners. He cites one recent dispute over an easement in a semi-rural setting which culminated in a head-on duel, with one party in their tractor charging the other in their bulldozer.

Bring in the CCTV

Driving over your neighbour’s land to get to your own land or battle-axe property can clearly be fraught with potential conflict.

”It'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,” explains Sydney.

“Some 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’s legitimate security needs and thus as an invasion of privacy.”

When surveillance becomes actionable

So, what is the dominant owner’s right of redress?

“Whether 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,” says Sydney.

Although there’s an assortment of Commonwealth and State legislation that offers people a right to privacy in relation to their data, that’s where the law stops.

“There'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?

“And 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.”

Tort of invasion of privacy

Which brings us to the law. A “gem” 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.

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.

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’s neighbour engages in “watching or besetting” another’s premises.

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.

“This is a case where the servient owner in respect of a broadly worded right of way (Au), forming in effect the Berlach’s driveway (“they” being the dominant owners) to their otherwise landlocked property, erected many CCTVs,” explains Sydney, quoting the judge at [117]-[118]:

“I respectfully agree with the analysis of the law in Raciti and accept … that it is applicable to the present case. By his own admission, Dr Au has set up an elaborate surveillance system designed to “snoop” on the activities of the Berlachs on the Easement and he and his wife spend “hours and hours” 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.”

“So, the key thing to note when it comes to easement cases,” says Sydney “is 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.”

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.

Remedies

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.

“By 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.”

Seeking damages, though available, is unlikely on its own to deliver the pressing and desired outcome which is to remove the intrusion.

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.

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.