Powers of Entry - How a Council employee is empowered to enter your private property.

Posted 21 months ago by Joerg Schmidt-Liermann

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An explanation of the rights and actions lawfully permitted to council employees whilst on your premises.

 

It’s common knowledge that if police come rapping at your door, you may be obligated to allow them entry. Armed with a search warrant granted by the court, police have the right to investigate criminal matters on a person’s private premises. But what if it is Barry, your local Council worker, who arrives at your doorstep?

There are a few situations in which property owners are required to allow duly authorised council officers to enter their premises by law. This blog post offers an insight into these situations, the legal framework permitting entry, and the rights you have with respect to unauthorised entry / trespass.

 

            So. How is this legal?

 

The Environmental Planning and Assessment Act 1979 (EPA Act)

 

The EPA Act sets out the legal framework pursuant to which local councils exercise certain planning functions. Pursuant to this Act, a duly authorised council officer may be permitted to enter privately owned property.

In 2015, the EPA Act was amended to allow a Council Officer to enter any non-residential premises where they have a reasonable suspicion that industrial, agricultural or commercial activities are taking place as part of their investigative powers.

When it comes to your home, however, their powers of entry are more limited. For residential premises, the EPAA stipulates that:

A duly authorised council officer may enter ONLY:

a)     with your consent;

b)     with the authority of a Search Warrant (issued by the court under the EPA Act);

c)     if entering is required in order to inspect work that is performed with a consent, approval or certificate under the EPA Act; or

d)     if you are applying for a building certificate and entering the premises is required for an inspection, so that the certificate may be issued.

In the case of (c) and (d) above, the EPA Act also provides that the council or officer must give the owner or occupier of the premises written notice of their intention to enter the premises. This notice must be given prior to entry. It must specify the day the Council officer intends entry and the notice must be given before that day.

This prerequisite notice may be negated:

a)     if entry to the premises is made with the consent of the owner or occupier of the premises, or

b)     if entry to the premises is made under the authority of a search warrant, or

c)     if entry to the premises is required because of the existence or reasonable likelihood of a serious risk to health or safety, or

d)     if entry is required urgently and the case is one in which the investigation authority has authorised in writing (either generally or in the particular case) entry without notice.

 

The Local Government Act, 1993 (LGA)

 

The LGA is the main legal framework regulating the functions and activities of local councils in NSW. It sets out the responsibilities and powers of Councils, Councillors and other persons and bodies that constitute the system of local government including the rights of Council officers to exercise powers of entry onto private land under the LGA.

Council officers may enter non-residential premises in order to exercise the Council’s functions (e.g. maintenance work such as water supply work, sewerage work or stormwater drainage work). Entry may only be made at a reasonable hour in the day, or any hour where business is in progress or carried on at the premises.

In terms of residential premises, the LGA imposes similar limitations found in the EPA Act. That is, entry is not allowed unless:

-         permission of the occupier is given,

-         entry is necessary for inspection, or

-         entry is authorised by the provision of a search warrant.

The LGA also mandates the requirement for notice of entry to be given in terms similar to those contained in the EPA Act, prior to entry of a premises by a duly authorised Council Officer.

The notice requirement is negated in the following situations:

-         entry with your consent;

-         entry due to the existence or reasonable likelihood of a serious risk to health or safety;

-         if the general manager has authorised an urgent “entry without notice”; or

-         if entry is made for the purpose of reading a meter or other device measuring:

        • The supply of water on the premises from the council’s water mains, or
        • The discharge of sewage or other waste matter from the premises into the council’s sewer mains.

 

The Companion Animals Act 1998 (CAA)

 

The CAA’s primary purpose is to outline the legal duties and responsibilities of pet owners. It provides the framework within which government bodies can regulate the effective and responsible care and management of companion animals. The CAA empowers local Council officers with powers of entry in certain situations.

Under the CAA, a Council officer may enter non-residential premises for two purposes.

  1. To seize any pet that the officer is already authorised to seize under the CAA, and
  2. To determine whether there has been compliance or contravention of the CAA or its regulations.

Again, notice is required under the CAA for entry into the premises except in particular circumstances:

-         with your consent of entry;

-         if the authorised officer believes entry is required due to the likelihood of a serious risk to the health or safety of you or your pet;

-         if entry is made to seize or secure a dog under a specific section 18 of the CAA; (for example - )

-         if the authorised officer reasons the purpose for entering the property is defeated by giving notice.

Powers of Entry for residential premises under the CAA are limited even further to situations where: 

  1. The occupier of the premises has given permission; and
  2. The officer has a search warrant granted under the CAA.

 

    What can Council do whilst on my Property?

 

Under the EPAA, if a Council officer seeks entry on an urgent basis, they have rights to use reasonable force to gain entry to the premises. The use of force for entry is only permitted if authorised by the Council, and the Council officer must do as little damage as possible. If feasible, entry should be made through an existing opening in the enclosing fence.

Once entry is gained, the officer has the right to inspect the premises and any article, matter or thing on the premises.

For the purpose of an inspection, an officer also has the right to undertake a number of actions on your property. These rights include:

-         the opening of any ground and removal of any flooring within the premises. This involves taking any measures necessary to ascertain the character and condition of the premises or any pipe, sewer, drain, wire or fitting within them;

-         the opening, cutting into or pulling down of any work within the premises. This right is granted if the person authorised has reason to suspect that something on the premises has been done in contravention of the EP&A Act, its regulations or an alternative environmental planning instrument;

-         the digging of trenches, breaking of soil and the setup of any posts, stakes or marks, for the purposes of taking measurements and levels, and making surveys;

-         the requirement of any person at those premises to answer questions or otherwise furnish information in relation to the subject of the inspection or investigation; and

-         the taking of samples or photographs in connection with any inspection.

 

Subsequent to entry and the following inspection of property, a Council must pay compensation for any damage that may have been caused. This is nulled in circumstances where the damage arising from the work completed for the purpose of an inspection, reveals that there has been a contravention of the EPAA, the regulations, or an environmental planning instrument.

 

           What should you do if you find yourself in this situation?

 

The laws surrounding Powers of Entry by authorised Council officers is nuanced and complex, and the rules are not always clear. If you have any queries regarding the contents of this blog or are faced with a similar situation, make sure you obtain legal advice as soon as possible.

Get advice early!

Schmidt-Liermann Lawyers are experienced in acting for and advising Councils, Developers, Businesses & Private Clients in a myriad of matters pertaining to Local Government Powers of Entry. We offer value and results-oriented legal services. Contact us today!

 

 

 

* This article does not represent legal advice and individuals or councils should obtain legal advice as early as possible for any legal issues with regard to Council Entry to premises.

We are here to help – If you have a question about anything in this blog, call us on 02 8095 7977, email us at [E-Mail via form] or DM our Facebook or Instagram page and we will be more than happy to answer your questions