Posted on September 14, 2020 by 2

Powers of entry to residential land clarified

This decision relates to the latest instalment of the cases involving members of the Bobolas family and Waverley Council (‘Council‘) with the Council issuing orders to require or allow the clean-up of the accumulation of waste that creates a public health risk.

In the most recent decision, the Land and Environment Court considered an application for judicial review challenging a s 22A order issued by the Council pursuant to s 124 of the Local Government Act 1993 (NSW) (‘LG Act’).

This blog will focus on the aspects of the decision dealing with Council’s power to enter residential land to remove waste where the order has not been complied with where the entry relates to residential land.

Under s 124 of the LG Act, a s22A order enables a Council to issue orders on the owner or occupier of premises to ‘remove or dispose of waste that is on any residential premises or to refrain from keeping waste on those premises’ in circumstances when the waste ‘is causing or is likely to cause a threat to public health or the health of any individual’

The order dated 29 January 2020 required the removal of various kinds of putrescible and non-putrescible waste and refraining from collecting such waste at the property. The reason for issuing the order identified the locality of the property in a residential neighbourhood and the likelihood of the large amount of waste attracting vermin, the combustible nature of the waste and its potential to be a fire hazard and the threat to public health. Compliance with the order was specified to be no later than 26 February 2020.

The Applicants case

The Applicants sought orders which included:

1. An injunction prohibiting action proposed by Waverley Council;
2. More time to do the work themselves;
3. Backyard should be exempt as no basis or making an order in relation to it.

The Applicants in their application submitted that s 200 of the LG Act prohibits the Council entering into residential premises (ground 11).

Council’s powers of entry under the LG Act

Under Chapter 7, Part 2 of the LG Act, s 200 provides the following:

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 for the purpose of inspecting work being carried out under an approval, or

(c)   under the authority conferred by a search warrant.

This restriction on the powers of entry to premises used for residential purposes is a common restriction affecting most powers of entry.

However, Chapter 17 of the LG Act outlines the enforcement powers of Council’s where there is a breach of the LG Act, including a breach of an order under Part 2 of Chapter 7 (s672(a) and (b)(ii) of the LG Act).

Relevantly, s 678 of the LG Act provides the following:

678   Failure to comply with order—carrying out of work by the council

(1)   If a person fails to comply with the terms of an order given to the person under Part 2 of Chapter 7, the council may do all such things as are necessary or convenient to give effect to the terms of the order, including the carrying out of any work required by the order.

In the context of this matter this includes entering land that is used for residential purposes.

The Court’s findings

In considering whether s 200 of the LGA Act prohibits Council from entering the residential premises, the Court relied on an earlier decision with the same parties in  Bobolas v Waverley Council (No 4) [2015] NSWCA 337 (‘Bobolas 4’) where the NSW Court of Appeal previously considered the relationship between ss 200 and 678 of the LG Act and whether the right of entry conferred by s 678 or orders made pursuant to s 678 allowing entry to residential premises was qualified by s 200.

In Bobolas 4, Leeming JA at [47] confirmed that s 200 does not qualify s 678 of the LG Act in that “the note [in s 678] does not render the power conferred by or pursuant to s 678 subject to s 200. Section 200 in its terms is confined to powers of entry and inspection “conferred by this Part”. The powers exercised by Council pursuant to an order made pursuant to s 678 do not fall within that description.” [our addition]

Pain J held at [40] that “it is clear and well settled that the power of entry conferred on a council pursuant to s 678 of the LG Act is not qualified by s 200. Section 200 deals with the rights of entry and inspection for the purposes set out in Ch 8, Pt 2 of the LG Act. That Part is separate and distinct to the power conferred by s 678 which specifically relates to orders issued under s 124 and also confers a power on the Court in compliance proceedings to order a council to enter and carry out works” as provided under s 678(10) of the LG Act.

Ultimately, the Court held that it was satisfied that Council was entitled under s 678 of the Act to enter the property and carry out works required by the order. The Applicants were not successful on this ground.

Accordingly, where a person fails to comply with terms of an order under Part 2 of Chapter 7 (such as s 124) of the LG Act, s 678 confers upon the Council a power to enter a property and give effect to the terms of the order in accordance with s 678(1) of the LG Act, and that includes entering residential land without owner’s consent.

If you would like to discuss the issues raised in this post, please contact Anzer Khan on 8235 9717 or Carlo Zoppo on 8235 9705.