Council is given significant responsibility for the monitoring, enforcement and regulation of a wide variety of legislation, including Local Laws and State legislation. There often comes a time when duly authorised Council employees or contractors are required to enter public and private property to carry out Council’s local government obligations and activities.
As an authorised person, knowing your “Powers of Entry” is key to ensuring that your right to enter and remain on the property is done so lawfully and that any action taken whilst you’re there, can be relied upon when carrying out your role.
Common Law Position
At common law, all people have the implied consent of the property occupier to enter and proceed to the common entry point, which is usually the front door.
It is worth noting that this implied consent can be withdrawn by the occupier by a locked gate or sign at the entrance that indicates this implied permission has been revoked (such as a “No Entry, Trespassers will be Prosecuted”). Where this exists, you should not enter the property unless you have a specific statutory power of entry to enter without permission, and even then, we recommend proceeding with caution.
Statutory Powers of Entry
Given the limitations with this common law right, it often becomes necessary to rely on your “Statutory” powers of entry, which are those powers given to you to enter property under either State legislation or Local Laws.
Whilst these powers are designed to assist Council in carrying out their local government responsibilities, they do impose on an occupier’s private property right to exclude all persons from their land, and therefore Courts will generally require strict compliance with the requirements.
General Powers of Entry
The Local Government Act 2009 (“the LGA”) provides a general statutory right of entry for authorised persons, but this is usually subject to restraints and conditions. These general powers apply to all “Local Government Acts”, which under the LGA is defined to mean a law for which Council performs its local government responsibilities and includes all state legislation that Council is responsible for enforcing, such as the Animal Management (Cats and Dogs) Act 2008, the Building Act 1975, the Planning Act 2016, the Water Supply (Safety and Reliability) Act 2008 and many others.
It is important to remember when asking for permission to enter, that you:
- produce your identity card or have it clearly displayed; and
- advise the occupier;
- of the purpose you are entering the property;
- that any thing or information found on the property may be used as evidence in court; and
- that the occupier is not obliged to give permission.
We also recommend that evidence of consent is obtained, for example, a signed written acknowledgement or recording (such as a body cam recording), so that if the occupier raises consent as an issue in later court proceedings, the acknowledgement can be produced as evidence. Without it, the Court will assume that consent was not given.
What happens if Consent is Refused?
If the occupier subsequently withdraws his/her consent to you being on their property (even if permission was initially obtained) or refuses at the outset, then you should leave the property immediately.
If you cannot obtain the required evidence from another place, such as from the road or adjoining property (where permission is provided), you will need to consider applying to a Magistrate for a warrant to enter private property under section 130 of the LGA. A warrant will allow you to enter the property without the occupier’s permission.
If you believe that your entry to the property under a warrant may be met with resistance or you are likely to need the use of force (to cut a locked gate for example), then you should include this in your warrant application and arrange with the local Police to provide you with assistance.
Can I enter without a Warrant where Consent is not given?
There are specific circumstances provided under the LGA where you can enter private property as an authorised person without the consent of the occupier. This is where you need to:
- inspect the property to process an application;
- inspect a record required to be kept under the Building Act, Chapter 7, for budget accommodation;
- find out whether the conditions of a permit or notice was issued have been complied with;
- inspect work that was required to be carried out under a permit or notice;
- enter under an “Authorised Inspection Program”; or
- inspect regulated pools.
Whilst sections 132 to 134A of the LGA allow you to enter property without the occupier’s permission, we always recommend proceeding with caution and if in doubt, apply for and obtain a warrant before entering the property.
Specific Powers of Entry
As you will generally be authorised under separate pieces of State legislation (captured by the “Local Government Acts”) in order to carry out your role, it is important for you to also be familiar with that legislation and the more specific powers of entry that it may provide.
The general rule of thumb is wherever there is a specific power of entry provided under other State legislation, these specific powers should be followed, to the extent they conflict with the general powers under the LGA.
Animal Management Specific Powers
As an example, the Animal Management (Cats and Dogs) Act 2008 (“the AMCD Act”), provides for the ‘general powers to enter places’ under section 111. These generally mirror those under the LGA, except that there are additional powers to enter a place to:
- inspect a place to process a restricted dog application (other than at night);
- determine whether conditions of a restricted dog permit or notice have been complied with (other than at night);
- inspect work carried out under a condition of a regulated dog declaration, restricted dog permit or compliance notice (issued under the AMCD Act); or
- under an approved inspection program.
Section 112 allows for additional powers of entry for particular dogs. This enables an authorised person to enter a place if:
- the person reasonably suspects the dog is a restricted dog, but no restricted dog permit has been issued;
- any delay in entering the place will result in a risk to community health or safety or the dog being concealed or moved to avoid a requirement under Chapter 4 (for Regulated Dogs); or
- the entry is made to confirm compliance with a compliance notice issued under the AMCD Act at a time stated in a notice given to the occupier.
These powers do not allow the use of force, except if any delay will result in a risk to community health or safety or the dog being concealed. In those circumstances, the authorised person can enter the place with the help and force necessary and reasonable in the circumstances (as long as it’s not where the person resides). However, as stated above we always recommend proceeding with caution even when provided with a power in the legislation to use reasonable force.
Will I always rely on the AMCD Act powers of entry for complaints about dogs?
You will likely receive other complaints involving dogs where entry to the property is required under Council’s Local Laws and not the AMCD Act, for example, a prohibition on keeping a certain number of dogs. In that instance, as an authorised person you will be relying on your powers pursuant to the Local Law to investigate the potential offence and not the AMCD Act, and unless your Council’s Local Laws provide different powers of entry, you will need to rely on your general powers of entry under the LGA to enter private property.
Therefore, it’s important to know what power you are exercising and the specific legislation that applies, to determine the powers of entry that must be followed when entering private property. The risk of entering property without following those requirements means any evidence gathered may be deemed inadmissible and any action taken in reliance on that evidence will likely be invalidated.
At Preston Law, we regularly provide training and advise our local government clients on all aspects of powers of entry for Council Officers. For further information or assistance, please contact our local government team.