Posted on April 18, 2024 by Anna Sinclair and Fayette Vermeer 5

A guide on powers of entry: residential premises

Authorised Council officers are given broad powers to enter and search premises under a range of legislation, including the Environmental Planning and Assessment Act 1979 (EPA Act), the Local Government Act 1993 (LG Act) and the Protection of the Environment and Operations Act 1997 (POEO Act). However, under each of those Acts, important restrictions apply to when an officer can enter and search premises used for “residential purposes”.

It is important that those restrictions are complied with, particularly when the entry and search are being carried out for the purpose of determining if there has been a breach of the Act and if compliance action should be taken. If they are not, then any evidence obtained is at risk of being deemed inadmissible by a Court in any future legal proceedings.

In this post, we look at when premises are being used for “residential purposes”, and the requirements that must be complied with to lawfully enter those premises.

Entry to premises being used for “residential purposes”

Under the EPA Act, LG Act and POEO Act (the Acts), relevant authorised officers can generally exercise their powers of entry and search to enable the Council to exercise its functions under the relevant Act, including to investigate whether there has been a breach of the relevant Act.

The Acts generally distinguish between entry to premises being used for any industrial, agricultural, or commercial activities, and those being used for “residential purposes”.

Under the Acts, the relevant authorised officers can generally only enter premises being used for “residential purposes”, or a part thereof, if:

1. the occupier grants consent;
2. a search warrant is obtained; or
3. in the case of the EPA Act and LG Act, entry is necessary to inspect work being carried out under a consent, approval or certificate under the relevant Act; or
4. in the case of the EPA Act, if a building certificate has been sought and it is necessary to inspect the premises for the purpose of issuing the certificate.

It is important to note that it must be the “occupier”, rather than the “owner”, of the premises that must grant consent to the entry. The occupier is generally the person with the management and control of the premises. The owner and occupier may be different persons.

If the occupier refuses to grant consent, then the Council officer must obtain a search warrant in order to enter the premises, unless the circumstances at points 3 and 4 above apply.

This can create difficulties for Council officers. For example, in the context of the EPA Act, if an investigation officer has reason to believe that development is being carried out without development consent (rather than development not in accordance with a consent). If the occupier refuses to consent to the entry, then the investigation officer must obtain a search warrant to lawfully enter the premises.

If an officer proposes to enter premises for the purposes of items 3 and 4 above, then the officer must give prior written notice to the occupier, and in the case of the LG Act, to the owner and occupier.

When are premises being used for “residential purposes”?

The phrase “residential purposes” is not defined under the Acts.

In Gerondal v Eurobodalla Shire Council [2011] NSWLEC 77, Craig J noted that the part of premises used for residential purposes would include the ‘building, structure or particular place physically used to provide residential accommodation’, which may extend to the ‘immediate curtilage of any such building structure or place’ but not the entire parcel of land on which the residential place is located, particularly if that part of the premises is not ‘within the confines of [the] building or place physically used for residential occupation’.

In Council of the City of Sydney v The Estate of the Late Alfred Sulligoi Care of the Public Trustee [2007] NSWLEC 778, Pain J stated that the premises must be used regularly for residential purposes and that there should be evidence that a person is living in any part of the relevant premises. Her Honour suggested that if there is no evidence of any person actually living in any part of a premises, there may be no part which is ‘being used for residential purposes’ within the meaning of the relevant provisions of the Acts.

Whether, and to what extent, premises are being used for “residential purposes” depends on all of the circumstances of the case and must be determined by having regard to whether the building, structure or place (and the surrounding land) is being physically, and currently, used for residential occupation.

If the premises is a block of land in an urban area, which only includes a dwelling, backyard and carport, then it is likely that the whole of the premises is being used for residential purposes. In contrast, if the premises is a large rural block of land with a dwelling and potentially other uses being carried out (e.g. agricultural), then it is likely that only the dwelling and the immediate surrounding land, which is also being used for residential occupation (e.g. backyard, carport) will be considered part of the premises being used for residential purposes.

Steps to properly enter and search residential premises

Before seeking to enter and search premises, authorised Council officers should determine whether the part of the premises they propose to enter is being used for “residential purposes”.  If it is, then the officer must comply with the requirements discussed above before entering those premises.

If an occupier refuses entry, and entry can only be made under a search warrant, then the officer should consider obtaining one. An application for a search warrant can be prepared and determined relatively quickly, and generally only requires the officer to provide evidence that establishes that they believe on reasonable grounds that there is, or has been a breach, of the relevant Act. Legal advice may be required for the preparation of an application.

If you have any questions about the matters discussed in this article, please leave a comment below or contact Anna Sinclair on 02 8235 9713 or Fayette Vermeer on 02 8235 9730.