Insights

Powers of Entry

A number of statutes give council officers the right to enter upon land including:

  • Local Government Act 1993
  • Swimming Pools Act 1992
  • Environmental Planning and Assessment Act 1979
  • Protection of the Environment Operations Act 1997.

The powers and limitations under each empowering legislation vary but the general concepts apply reasonably well across the board. For concision, we will limit this article to the powers of entry arising under the Local Government Act 1993.

Powers of Entry under Local Government Act

Under section 191 of the Local Government Act (“LGA”), a council employee (or any other authorised person) may enter any premises for the purpose of enabling a council to exercise its functions.

“Premises” has a wide definition under the LGA and means:  a building of any description or any part of it and any attachments to it; land, whether built on or not; a shed or other structure; a tent; a swimming pool; a ship or vessel of any description, including a houseboat; a van.

For the purposes of inspections and investigations, a council employee, or other person authorised by a council, may:

  1. Inspect the premises, including things found on them and any food or vehicles.
  2. Open any ground or remove flooring, or require the opening, cutting into or pulling down of a work where it is relevant to a suspected breach of the LGA or regulations.
  3. Take measurements, make surveys and take levels, and for those purposes, dig trenches, break up the soil and set up any posts, stakes or marks.
  4. Require any person at those premises to answer questions or otherwise furnish information in relation to the matter which is the subject of the inspection or investigation.
  5. Examine and test any meter.
  6. Measure a supply of water.
  7. Take samples or photographs in connection with any inspection.

Council must issue notice first

Before a person authorised to enter premises does so, a council must give the owner or occupier of the premises written notice of the intention to enter the premises. The notice must specify the day on which the person intends to enter the premises and must be given before that day.[1]

Section 191(3) outlines situations where notice is not required to be given. This includes cases where entry to the premises is made with the consent of the owner or occupier of the premises, if entry to the premises is required because of the reasonable likelihood of a serious risk to health or safety, if urgent entry is required and entry without notice is authorised in writing by the general manager, or where entry is solely for the purpose of reading a meter or similar device relating to water supply to the council’s water mains or discharge of sewage or other matter to the council’s sewer mains.

Power of entry is limited with residential premises

However, the power is limited when entering that part of the “premises” that is being used for residential purposes. It is unclear whether a swimming pool or shed adjacent to a residential dwelling for example would be “used for residential purposes” but in our view it is likely that residential purposes are not just limited to a house, building or room but would extend to land around a building and adjacent sheds.

In Gerondal v Eurobodalla Shire Council [2011] NSWLEC 77, one of the grounds of appeal was that evidence obtained from inspection of the property was inadmissible, as it was unlawfully obtained because the officers did not gain permission to enter the residential property. However, the court held that despite a caravan on the land being used for residential occupation, the LGA specifies that residential land is land used ‘only’ for residential purposes, with the land in this case largely being used as a waste facility. Therefore, it was not held to be land “used for residential purposes”, regardless of the fact that it was zoned as rural-residential land.

Under section 200 of the LGA, the powers of entry and inspection may only be used:

  1. With the permission of the occupier of the premises
  2. If entry is necessary for the purpose of inspecting work being carried out under an approval
  3. Under the authority conferred by a search warrant.[2]

While this section provides a “special protection” to residential premises by limiting the power of council to enter, there is no limit on the Court’s power to make orders under section 678(10) of the LGA to enable a council to enter residential premises where the resident has failed to comply with a council order.[3]

Use of force

Reasonable force may be used for the purpose of gaining entry to any premises (other than residential premises), but only if authorised by a council in accordance with section 194. The council’s authorisation must be in writing, must be given for the particular entry concerned and must specify the circumstances which permit such force to be used.[4]

If the owner or occupier of residential premises refuses access

Under section 200 of the LGA if the owner or occupier of the residential premises has not granted permission, the residential premises may only be accessed:

  • If the entry is necessary for the purpose of inspecting work being carried out under an approval
  • Under the authority conferred by a search warrant.

If none of these exceptions apply, then an officer is not authorised to enter and inspect residential premises. Anything an officer does that is not authorised by legislation is done unlawfully and any evidence obtained may not be admissible in court.

Further, council officers would be guilty of a trespass upon the land. This situation is exemplified in Lee & Robert Rumble v Liverpool Plains Shire Council & Ors [2012] NSWDC 95 in which it was found that council officers had not been granted permission to access the property merely through the service of an order under the Environmental Planning and Assessment Act 1979 (“EPA Act”) and had therefore committed a trespass on the land.

Get a warrant

If consent is not obtained and none of the exceptions above apply, council should get a warrant.

There are specified requirements to be met in applying for a search warrant for premises where it is believed that the provisions of the LGA or the regulations, or the terms of an approval or order issued under that Act have been, or are being contravened. Basically, an authorised person must apply to an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 for a warrant.[5] The authorised officer may grant a warrant to enter and search premises for evidence of a contravention of the Act or regulations, if satisfied that there are reasonable grounds for doing so. A police officer may accompany an authorised person (council officer) and must take all reasonable steps to assist the authorised person in the exercise of their functions.[6]

Note that where a search warrant authorises entry to premises for a specific purpose it may not be used to collect evidence for other purposes, that is, the officer making entry may only do so for the purpose for which the warrant was issued.

Recovery of costs

If a person authorised by a council enters premises for the purpose of making an inspection and, as a result of that inspection, the council requires work to be carried out, the council may recover the reasonable costs of the entry and inspection from the owner or occupier of the premises.[7] Section 197 of the LGA does not limit these costs to costs incurred during the inspection. The section merely requires that the costs be reasonable.

In our view, it would be well within the rights of a council, once refused entry to residential premises, to put the owner or occupier of the premises on notice that council will seek a warrant and, if as a result of the inspection pursuant to that warrant, council requires work to be carried out, council will seek to recover all of the costs of the entry and inspection, including the costs of obtaining the warrant.

If the owner or occupier, now on notice, persists in refusing consent to access and council is put to the costs of obtaining a warrant and as a result of the subsequent inspection, the council requires work to be carried out, the council should seek to recover its costs against the owner or occupier of the premises.

Compensation

A council must pay compensation for any damage caused by any person authorised by the council to enter premises, other than damage arising from work done for the purpose of an inspection which reveals that there has been a contravention of the LGA or any other Act.[8]

If a dispute arises between council and a homeowner claiming compensation, if agreed by both parties, the matter may be referred for Arbitration. If an agreement is not made within 28 days after notice is served, either party may refer the claim to the Land and Environment Court, which may make any order the court thinks just.[9]

[1]         Section 193(1) and (2) Local Government Act 1993 (NSW)
[2]         Section 194 Local Government Act 1993 (NSW)
[3]         Manly Council v Moffit [2006] NSWLEC 184
[4]         Section 194 Local Government Act 1993 (NSW)
[5]         Generally – a magistrate or registrar of the local court.
[6]         Section 201 Local Government Act 1993 (NSW)
[7]         Section 197 Local Government Act 1993 (NSW)
[8]         Section 198 Local Government Act 1993 (NSW)
[9]         Section 730 Local Government Act 1993 (NSW)