When can Council come onto my land?

Councils have broad ranging powers of access to private property under the Local Government Act 1993 (LG Act) (s 191), the Environmental Planning and Assessment Act 1979 (EPA Act)(s 119D), as well as the Protection of the Environment Operations Act 1997 (POEO Act)(s 196).

The powers are very similar across these three Acts and provide, in essence, that an authorised officer (which usually includes a duly appointed council officer) may enter onto privately owned land for the purpose of exercising the council’s functions.

However, each of the Acts contains a limitation on this power with respect to ‘premises used for residential purposes‘. Power of entry onto premises used for residential purposes is restricted under these Acts to varying degrees. Generally, Council is required to obtain either the consent of the occupier or a search warrant if the premises it means to enter is used for residential purposes.

The LG Act is a good example to illustrate the problems Councils may face in gaining access to private property and the various ways to ensure access is taken legally.

Section 191 of the LG Act provides relevantly:

191 Power of entry

(1) For the purpose of enabling a council to exercise its functions, a council employee (or other person) authorised by a council may enter any premises.

Section 200 of the LG Act provides an exception to this rule:

200 In what circumstances can entry be made to a residence?

The powers of entry and inspection conferred by this Part are not exercisable in relation to that part of any premises being used for residential purposes except:

(a) with the permission of the occupier of that part of the premises, or

(b) if entry is necessary or the purpose of inspecting work being carried out under an approval, or

(c) under the authority of a search warrant.

Section 119D(2) of the EPA Act provides a similar limitation to Council’s power of entry:

(2) An investigation officer may enter a part of premises used for residential purposes only:

(a) with the consent of the occupier; or

(b) under the authority of a search warrant issued under this Division, or

(c) if it is necessary to do so to inspect work being carried out under a consent, approval or certificate under this Act, or

(d) if a building certificate has been sought under this Act and it is necessary to do so to inspect the premises for the purpose of issuing the certificate.

‘Premises‘ is defined broadly in both Acts so as to include not just the building on the land, but appurtenances to that building, manufactured homes and moveable dwellings, vacant land, a tent, a swimming pool or a ship or vessel (including a houseboat). The LG Act even extends the definition of ‘premises‘ to include a van.

Accordingly, a premises used for residential purposes is not limited to a dwelling or even a structure. It can include land used for residential purposes, a camping ground, a boat or even someone’s vehicle, depending on the Act under which the power is being exercised.

The rules are different for non-residential premises, including commercial, industrial or agricultural premises. In the case of a non-residential premises under the LG Act, authorised Council officers may access the private land at any reasonable time. Notice of entry is usually required except in limited circumstances, such as the existence of a serious risk to health or safety.

Under the EPA Act, non-residential premises may be accessed by an investigation officer without prior notice where the officer ‘reasonably suspects’ that any industrial, agricultural or commercial activity is being carried out.

What are the consequences for council?

If private land is not accessed lawfully, the council officer’s presence on the land is technically a trespass.

This has implications for any information or observations gathered during that attendance which council may seek to rely on as evidence later on in proceedings.

What should Councils do when accessing private land?

Prior to entering onto any private land, a Council officer should:

1. confirm the Act under which the power of entry is being exercised;
2. check whether the officer accessing the premises has been duly authorised under that particular Act to exercise council’s powers and functions;
3. determine whether the premises is residential or non-residential;
4. if non-residential, consider whether notice is required before entering; and
5. if residential, consider whether access can still be made to the premises in accordance with one of the exceptions to the general restriction.

If consent from the occupant can be obtained prior to entry, Council can enter onto any land, residential or not, without notice.

Licence to ‘knock’

Lord Parker CJ said in Robson v Hallett [1967] 2 QB 939 (at 951) that:

‘the occupier of any dwelling-house gives implied licence to any member of the public coming on his lawful business to come through the front gate, up the steps, and knock on the door of the house‘.

This implied licence extends to council officers carrying out their duties lawfully and may enter onto the land for the purpose of attending the front door and knocking.

However, the licence may be withdrawn by the giving of notice, which may be a verbal notice such as a statement, or by the posting of a sign, or by the locking of a gate. If access to the front door is attempted in circumstances where the licence has been revoked, the person attempting access will have trespassed.

If you would like to know more about the powers of councils, you can read our articles on councils’ power to give orders, when councils need to invite tenders, as well as the process involved in challenging decisions of councils.

If you need more information or help please contact us.