Environmental Planning and Assessment Act 1979 No 203
Historical version for 1 October 2010 to 31 December 2010 (accessed 20 December 2014 at 11:52) Current version
Part 6Division 1A

Division 1A Local enforcement powers

118A   Power of entry

(1)  For the purpose of enabling a council to exercise the council’s functions, the council may authorise a person, in writing, to enter any premises.
(2), (2A)  (Repealed)
(2B)  The principal certifying authority for any development may enter the land on which the development is carried out, including any building or work being erected on the land, for the purpose of exercising his or her functions under this Act and the regulations as the principal certifying authority with respect to the development.
(2C)  Subject to the regulations, this Division (other than section 118BA) applies to a principal certifying authority referred to in subsection (2B) as if his or her functions as a principal certifying authority were the functions of a council and as if he or she had been authorised by a council to enter premises for the purpose of exercising those functions.
(3)  Entry may only be made at any reasonable hour in the daytime or at any hour during which business is in progress or is usually carried on at the premises.

118B   Inspections and investigations

For the purpose of enabling a council to exercise the council’s functions, a person authorised to enter premises under this Division may:
(a)  inspect the premises and any article, matter or thing on the premises, and
(b)  for the purpose of an inspection:
(i)  open any ground and remove any flooring and take such measures as may be necessary to ascertain the character and condition of the premises and of any pipe, sewer, drain, wire or fitting, and
(ii)  require the opening, cutting into or pulling down of any work if the person authorised has reason to believe or suspect that anything on the premises has been done in contravention of this Act, the regulations or an environmental planning instrument, and
(c)  take measurements, make surveys and take levels and, for those purposes, dig trenches, break up the soil and set up any posts, stakes or marks, and
(d)  require any person at those premises to answer questions or otherwise furnish information in relation to the matter the subject of the inspection or investigation, and
(e)  take samples or photographs in connection with any inspection.

118BA   Power of authorised persons to require answers and record evidence

(1)  A person authorised to enter premises under this Division (an authorised person) may require an accredited certifier, a person carrying out building work or subdivision work or any other person whom the authorised person suspects on reasonable grounds to have knowledge of matters in respect of which information is reasonably required to enable the council concerned to exercise its functions under this Act to answer questions in relation to those matters.
(2)  An authorised person may require a corporation to nominate a director or officer of the corporation who is authorised to represent the corporation for the purposes of answering questions under this section.
(3)  An authorised person may, by notice in writing, require a person referred to in subsection (1) to attend at a specified place and time to answer questions under this section if attendance at that place is reasonably required in order that the questions can be properly put and answered.
(4)  The place and time at which a person may be required to attend under subsection (3) is to be:
(a)  a place and time nominated by the person, or
(b)  if the place and time nominated is not reasonable in the circumstances or a place and time is not nominated by the person, a place and time nominated by the authorised person that is reasonable in the circumstances.
(5)  An authorised person may cause any questions and answers to questions given under this section to be recorded if the authorised person has informed the person who is to be questioned that the record is to be made.
(6)  A record may be made using sound recording apparatus or audio visual apparatus, or any other method determined by the authorised person.
(7)  A copy of any such record must be provided by the authorised person to the person who is questioned as soon as practicable after it is made.
(8)  A record may be made under this section despite the provisions of any other law.

118C   Notice of entry

(1)  Before a person authorised to enter premises under this Division does so, the council or the person must give the owner or occupier of the premises written notice of the intention to enter the premises.
(2)  The notice must specify the day on which the person intends to enter the premises and must be given before that day.
(3)  This section does not require notice to be given:
(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 required because of the existence or reasonable likelihood of a serious risk to health or safety, or
(c)  if entry is required urgently and the case is one in which the general manager of the council has authorised in writing (either generally or in the particular case) entry without notice.

118D   Use of force

(1)  Reasonable force may be used for the purpose of gaining entry to any premises (other than residential premises) under a power conferred by this Division, but only if authorised by the council in accordance with this section.
(2)  The authority of the council:
(a)  must be in writing, and
(b)  must be given in respect of the particular entry concerned, and
(c)  must specify the circumstances which are required to exist before force may be used.

118E   Notification of use of force or urgent entry

(1)  A person authorised to enter premises under this Division who:
(a)  uses force for the purpose of gaining entry to the premises, or
(b)  enters the premises in an emergency without giving written notice to the owner or occupier,
must promptly advise the council.
(2)  The council must give notice of the entry to such persons or authorities as appear to the council to be appropriate in the circumstances.

118F   Care to be taken

(1)  In the exercise of a function under this Division, a person authorised to enter premises must do as little damage as possible. The council must provide, if necessary, other means of access in place of any taken away or interrupted by a person authorised by it.
(2)  As far as practicable, entry on to fenced land is to be made through an existing opening in the enclosing fence. If entry by that means is not practicable, a new opening may be made in the enclosing fence, but the fence is to be fully restored when the need for entry ceases.

118G   Recovery of cost of entry and inspection

If a person authorised by a council enters any premises under this Division for the purpose of making an inspection and as a result of that inspection, under a power conferred on the council, the council requires any work to be carried out on or in the premises, the council may recover the reasonable costs of the entry and inspection from the owner or occupier of the premises.

118H   Compensation

A council must pay compensation for any damage caused by any person authorised by the council under this Division to enter premises, other than damage arising from work done for the purpose of an inspection which reveals that there has been a contravention of this Act, the regulations or an environmental planning instrument.

118I   Authority to enter premises

(1)  A power conferred by this Division to enter premises, or to make an inspection or take other action on premises, may not be exercised unless the person proposing to exercise the power is in possession of an authority and produces the authority if required to do so by the owner or occupier of the premises.
(2)  The authority must be a written authority which is issued by the council and which:
(a)  states that it is issued under this Act, and
(b)  gives the name of the person to whom it is issued, and
(c)  describes the nature of the powers conferred and the source of the powers, and
(d)  states the date (if any) on which it expires, and
(e)  describes the kind of premises to which the power extends, and
(f)  in the case of a council, bears the signature of the general manager.
(3)  This section does not apply to a power conferred by a search warrant.

118J   In what circumstances can entry be made to a residence?

The powers of entry and inspection conferred by this Division 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 a development consent (including a complying development certificate), or
(c)  under the authority conferred by a search warrant, or
(d)  if an application for a building certificate has been made under section 149B in respect of premises used for residential purposes and entry is necessary for the purpose of inspecting the premises in order to issue a building certificate in accordance with sections 149A–149E.

118K   Search warrants

(1)  A person generally or specially authorised by a council for the purposes of this section may apply to an authorised officer if the authorised person has reasonable grounds for believing that the provisions of this Act, the regulations, an environmental planning instrument or the terms of a development consent, complying development certificate or order under this Act have been or are being contravened in or on any premises.
(2)  An authorised officer to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an authorised person named in the warrant:
(a)  to enter the premises, and
(b)  to search the premises for evidence of a contravention of this Act, the regulations, an environmental planning instrument or the terms of a development consent, complying development certificate or order under this Act.
(3)  Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.
(4)  Without limiting the generality of section 71 of the Law Enforcement (Powers and Responsibilities) Act 2002, a police officer:
(a)  may accompany an authorised person executing a search warrant issued under this section, and
(b)  may take all reasonable steps to assist the authorised person in the exercise of the person’s functions under this section.
(5)  In this section:

authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002.

118L   Special provision with respect to fire brigades

(1)  An authorised fire officer within the meaning of section 121ZC may exercise the functions conferred on a person authorised by a council under this Division for the purpose of inspecting a building to determine:
(a)  whether or not adequate provision for fire safety has been made in or in connection with the building, or
(b)  whether or not such of the provisions of this or any other Act or law as may be prescribed for the purposes of this paragraph have been complied with.
(2)  An inspection for the purposes of subsection (1) (a) is not, however, authorised for premises other than places of shared accommodation except:
(a)  when requested by the council of the area in which the building is located, or
(b)  when requested by a person who holds himself or herself out as the owner, lessee or occupier of the building, or
(c)  when the Commissioner of New South Wales Fire Brigades has received a complaint in writing that adequate provision for fire safety has not been made concerning the building.
(3)  A council must, at the request of the Commissioner of New South Wales Fire Brigades, make available a person authorised by the council for the purposes of the inspection, and the person concerned is to be present during the inspection.
(4)  The Commissioner of New South Wales Fire Brigades must send a report of any inspection carried out under this section to the council concerned.
(5)  This Division applies to an authorised fire officer within the meaning of section 121ZC in the same way as it applies to a council and a council employee (or other person) authorised by the council.

118M   Councils to carry out fire-safety inspections on request of Commissioner of NSW Fire Brigades

(1)  A council must, at the written request of the Commissioner of New South Wales Fire Brigades, cause any building specified in the request to be inspected for the purpose of determining whether or not adequate provision for fire safety has been made in or in connection with the building.
(2)  As soon as practicable after such an inspection has been carried out, the council must send a report of the inspection to the Commissioner of New South Wales Fire Brigades.

118N   Obstruction of authorised persons

(1)  A person must not:
(a)  without reasonable excuse, refuse or fail to comply with any notice given or requirement made, or to answer any question asked, by an authorised person under this Division, or
(b)  wilfully delay, hinder or obstruct an authorised person in the exercise of the authorised person’s functions under this Division, or
(c)  furnish an authorised person with information that the person knows (or ought reasonably to know) is false or misleading in a material particular.

Maximum penalty: 20 penalty units.

(2)  Section 122U applies to and in respect of:
(a)  an offence under subsection (1) of failing or refusing to comply with a requirement to furnish information or answer a question under this Division in the same way as it applies to an offence of failing or refusing to comply with a requirement to furnish information or answer a question under Division 2C, and
(b)  a requirement to furnish information or answer a question under this Division in the same way as it applies to a requirement to furnish information or answer a question under Division 2C.
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