Part 11 Entry to land and other powers
Division 1 Entry to land
164 Power of entry
(1) For the purposes of this Act, an authorised officer may enter any land.
(2) Except in emergencies, the power of entry may be exercised only during daylight hours.
165 Inspections and investigations
For the purposes of this Act, an authorised officer who enters land under any power of entry conferred by this Division:
(a) may inspect the land, and
(b) may, for the purposes of an inspection, dig up any ground and take such measures as are necessary to ascertain the character and condition of the land and of any building, structure or work that is situated in, on or over the land, and
(c) may make surveys and take levels and, for those purposes, may dig trenches, break up the soil and set up any posts, stakes or marks, and
(d) may take samples or photographs in connection with any inspection.
166 Notice of entry
(1) Before an authorised officer exercises a power of entry under this Division, the roads authority must give the owner or occupier of the land written notice of the intention to enter the land.
(2) The notice must specify the day on which the authorised officer intends to enter the land and must be given before that day.
(3) This section does not require notice to be given:
(a) if entry to the land is made with the consent of the owner or occupier of the land, or
(b) if entry is required in an emergency.
167 Use of force
(1) Reasonable force may be used for the purpose of gaining entry to any land (other than such part of a building as is being used for residential purposes) under a power conferred by this Division, but only if authorised by the roads authority in accordance with this section.
(2) The authority:
(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.
168 Notification of use of force or urgent entry
(1) An authorised officer:
(a) who uses force for the purpose of gaining entry to the land, or
(b) who enters land in an emergency without giving written notice to the owner or occupier,
must promptly advise the roads authority of that fact.
(2) The roads authority must give notice of the entry to such persons or authorities as appear to the roads authority to be appropriate in the circumstances.
169 Care to be taken
(1) In the exercise of a function under this Division, an authorised officer must do as little damage as possible.
(2) The roads authority must provide, if necessary, other means of access in place of any taken away or interrupted by an authorised officer.
(3) As far as practicable, entry on to fenced land is to be made through an existing opening in the enclosing fence or, if entry by that means is not practicable, through a new opening in the enclosing fence.
(4) Any new opening is to be properly closed when the need for entry ceases.
(5) If, in the exercise of a function under this Division, any pit, trench, hole or bore is made, the roads authority must, if the owner or occupier of the premises so requires:
(a) fence it and keep it securely fenced so long as it remains open or not sufficiently sloped down, and
(b) without unnecessary delay, fill it up or level it or sufficiently slope it down.
170 Recovery of cost of entry and inspection
If an authorised officer enters any land for the purpose of making an inspection and, as a result of that inspection, the roads authority requires any work to be carried out on the land, the roads authority may recover the reasonable costs of the entry and inspection from the owner or occupier of the land.
A roads authority must pay compensation to the owner of the land for any loss or damage arising from the exercise of any power under this Division by an authorised officer, but is not so liable to the extent to which the loss or damage arises from work done for the purpose of an inspection which reveals that there has been a contravention by the owner of this or any other Act.
172 Authority to enter land
(1) A power of entry may not be exercised unless the authorised officer:
(a) is in possession of a certificate of authority issued by the appropriate roads authority, and
(b) produces the certificate when required to do so by the owner or occupier of the land.
(2) The certificate of authority:
(a) must state that it is issued under this Act, and
(b) must give the name of the person to whom it is issued, and
(c) must describe the nature of the powers conferred and the source of the powers, and
(d) must state the date (if any) on which it expires, and
(e) must describe the kind of land to which the power extends, and
(f) must be under the seal of the roads authority or must bear the signature of the general manager or other principal officer of the roads authority or the signature of another officer of the authority of a class prescribed by the regulations.
173 Entry to residential premises
A power of entry conferred by this Division is not exercisable in relation to such part of a building as is being used for residential purposes except:
(a) with the permission of the occupier of that part of the premises, or
(b) under the authority conferred by a warrant of entry.
174 Warrants of entry
(1) A roads authority may apply to an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 if the roads authority is of the opinion that it is necessary for the authority to enter and inspect any land (including any building used for residential purposes) for the purposes of this Act.
(2) An authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a warrant of entry authorising an authorised officer under this Act named in the warrant to enter and inspect the land for the purposes of this Act.
(3) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a warrant of entry issued under this section in the same way as it applies to a search warrant issued under that Act.
Division 2 Other powers with respect to land
175 Roads authority may take possession of land when constructing etc public road
(1) For the purpose of:
(a) carrying out road work on a road or a proposed road, or
(b) providing a temporary road to replace a public road that has become impassable,
the appropriate roads authority may use and occupy, for as long as may reasonably be necessary in the circumstances, any land along or near the line of the road.
(2) However, the power may not be exercised unless the appropriate roads authority has given the occupier of the land at least 7 days’ written notice of its intention to exercise the power.
(3) A person given a notice under this section may, within 7 days after receipt of the notice, appeal to the Minister against the proposed use and occupation to which the notice relates by lodging with the Minister a written notice of appeal specifying the grounds of appeal.
(4) The decision of the Minister on such an appeal is binding on the appropriate roads authority and the appellant and is final.
(5) A notice under this section is not required:
(a) if, in the opinion of the appropriate roads authority, it is necessary, as a matter of urgency, to use and occupy land that is more than 15 metres from a dwelling-house for the purpose of reconstructing or repairing a particular road, and
(b) if that authority gives the occupier of the land such notice (if any) as is practicable in the circumstances and, immediately after giving the notice, reports to the Minister the circumstances requiring such a notice to be dispensed with.
(6) The appropriate roads authority must not, under this section, use or occupy land within 15 metres of a dwelling-house unless:
(a) the occupier of the land has consented in writing to the use or occupation, or
(b) if that consent is not given—the Minister has given written authority for the use or occupation.
(7) The roads authority must pay compensation to the owner of the land for any loss or damage arising from the exercise of any power under this section.
(8) While being used or occupied under this section for the purpose of providing a temporary road, the land so used or occupied is taken to be a public road for the purposes of this Act (Parts 2, 3, 4 and 10 excepted).
176 Access roads across land owned by public authority
(1) A roads authority may enter into, and perform its obligations under, an agreement under which the roads authority contributes towards the expenses of the public authority in constructing and maintaining a road across any land under the control of the public authority.
(2) While such an agreement is in force, the road is taken to be a public road for the purposes of this Act (Parts 2, 3, 4 and 10 excepted).