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Contents (1979 - 203)
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Environmental Planning and Assessment Act 1979 No 203
Historical version for 1 December 2015 to 26 January 2016 (accessed 10 April 2020 at 10:30) Current version
Part 6 Division 1C
Division 1C Investigative powers
Subdivision 1 Preliminary
119A   Definitions
In this Division:
authorised fire officer means an authorised fire officer within the meaning of section 121ZC.
investigation authority means:
(a)  a council, in relation to an investigation officer appointed by the council, or
(b)  the Secretary, in relation to any other investigation officer.
investigation officer means a person appointed as an investigation officer under this Division by the Secretary (a departmental investigation officer) or by a council (a council investigation officer).
investigation purpose means a purpose for which a power may be exercised under this Division.
occupier of premises means the person who has the management or control of the premises (including a tenant or other lawful occupant who is not the owner).
records includes plans, specifications, maps, reports, books and other documents (whether in writing, in electronic form or otherwise).
this Act includes the regulations.
119B   Appointment of investigation officers
(1)  The Secretary or a council may appoint persons (including any class of persons) as investigation officers for the purposes of this Division.
Note.
 Because of the definition of investigation officer, a person appointed by the Secretary becomes a departmental investigation officer and a person appointed by the council becomes a council investigation officer.
(2)  A person’s appointment as an investigation officer may be made generally, or made subject to conditions or restrictions or only for limited purposes.
(3)  A person’s appointment as an investigation officer is to be made by written instrument (in the case of an individual appointment) or by notice published on the NSW planning portal or in the Gazette (in the case of the appointment of a class of persons).
(4)  Every investigation officer is to be provided by the investigation authority with an identification card as an investigation officer.
(5)  If persons of a class are appointed as investigation officers, they need not be provided with an identification card if the investigation authority is satisfied that they possess adequate identification as persons of that class.
119C   Purposes for which powers under Division may be exercised
(1)  A departmental investigation officer may exercise powers under this Division for any of the following purposes:
(a)  enabling the Minister or the Secretary to exercise their functions under this Act,
(b)  determining whether there has been compliance with or a contravention of this Act, including any instrument, consent, approval or any other document or requirement issued or made under this Act,
(c)  obtaining information or records for purposes connected with the administration of this Act,
(d)  generally for administering this Act.
(2)  A council investigation officer may exercise powers under this Division for any of the following purposes:
(a)  enabling a council to exercise its functions under this Act,
(b)  at the request of the Commissioner of Fire and Rescue NSW, determining whether or not adequate provision for fire safety has been made in or in connection with a building.
(3)  Nothing in this Division affects any function under any other provision of this Act or under any other Act.
Subdivision 2 Powers of entry and search
119D   Powers of investigation officers to enter premises
(1)  An investigation officer may enter:
(a)  any premises at which the officer reasonably suspects that any industrial, agricultural or commercial activities are being carried out—at any time during which those activities are being carried out there, and
(b)  any other premises—at any reasonable time.
(2)  An investigation officer may enter a part of premises used for residential purposes only:
(a)  with the consent of the occupier, or
(b)  under the authority of a search warrant issued under this Division, or
(c)  if it is necessary to do so to inspect work being carried out under a consent, approval or certificate under this Act, or
(d)  if a building certificate has been sought under this Act and it is necessary to do so to inspect the premises for the purpose of issuing the certificate.
(3)  An investigation officer may enter any premises under the authority of a search warrant issued under this Division.
(4)  The power to enter premises authorises entry by foot or by means of a motor vehicle or other vehicle, or in any other manner.
(5)  Reasonable force may be used to enter premises under this Division.
(6)  An investigation officer may enter premises under this Division with the aid of such investigation officers, police officers or other persons as the investigation officer considers necessary.
119E   Notice of entry of residential premises
(1)  This section applies to the entry into any part of premises used for residential purposes only for the purpose of inspecting work being carried out under a consent, approval or certificate under this Act or for the purpose of issuing a building certificate sought in respect of the premises.
(2)  An investigation officer or the investigation authority must give the owner or occupier of the premises written notice of the intention to enter the premises before a person authorised to enter premises under this Division does so.
(3)  The notice must specify the day on which the person intends to enter the premises and must be given before that day.
(4)  Notice is not required 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 made under the authority of a search warrant issued under this Division, or
(c)  if entry to the premises is required because of the existence or reasonable likelihood of a serious risk to health or safety, or
(d)  if entry is required urgently and the case is one in which the investigation authority has authorised in writing (either generally or in the particular case) entry without notice.
119F   Powers of investigation officers to do things at premises
(1)  An investigation officer who lawfully enters premises may do anything that the officer thinks is necessary to be done for an investigation purpose, including (but not limited to) the following things:
(a)  examine and inspect any works, plant or other article,
(b)  take and remove samples,
(c)  make such examinations, inquiries and tests as the officer thinks necessary,
(d)  take such photographs, films, audio, video and other recordings as the officer thinks necessary,
(e)  for the purpose of an inspection:
(i)  open any ground and remove any flooring and take any measures that 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 officer has reason to believe or suspect that anything on the premises has been done in contravention of this Act,
(f)  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,
(g)  require records to be produced for inspection,
(h)  examine and inspect any records,
(i)  copy any records,
(j)  seize anything that the officer has reasonable grounds for believing is connected with an offence against this Act,
(k)  do any other thing the officer is empowered to do under this Division.
(2)  The power to seize anything connected with an offence includes a power to seize:
(a)  a thing with respect to which the offence has been committed, and
(b)  a thing that will afford evidence of the commission of the offence, and
(c)  a thing that was used for the purpose of committing the offence.
A reference to any such offence includes a reference to an offence that there are reasonable grounds for believing has been committed.
119G   Search warrants
(1)  An investigation officer may apply to an eligible issuing officer for the issue of a search warrant if the investigation officer believes on reasonable grounds that this Act is being or has been contravened at any premises.
(2)  An eligible issuing 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 investigation officer named in the warrant:
(a)  to enter the premises, and
(b)  to exercise any function of an investigation officer under this Division.
(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)  In this section:
eligible issuing officer means an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002.
119H   Care to be taken
(1)  An investigation officer must do as little damage as possible in the exercise of a power to enter or search premises under this Division. The investigation authority must provide, if necessary, other means of access in place of any taken away or interrupted by an investigation officer.
(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.
119I   Notification of use of force
(1)  An investigation officer who uses force for the purpose of gaining entry to premises must promptly advise the investigation authority.
(2)  The investigation authority must give notice of the entry to such persons or authorities as appear to the investigation authority to be appropriate in the circumstances.
Subdivision 3 Powers to obtain information
119J   Requirement to provide information and records
(1)  An investigation officer may, by notice in writing given to a person, require the person to furnish to the officer such information or records (or both) as the notice requires in connection with an investigation purpose.
(2)  The notice must specify the manner in which information or records are required to be furnished and a reasonable time by which the information or records are required to be furnished.
(3)  The notice may only require a person to furnish existing records that are in the person’s possession or that are within the person’s power to obtain lawfully.
(4)  The person to whom any record is furnished under this section may take copies of it.
(5)  If any record required to be furnished is in electronic, mechanical or other form, the notice requires the record to be furnished in written form, unless the notice otherwise provides.
(6)  An investigation officer may exercise a power under this section whether or not a power of entry is being or has been exercised.
119K   Power of investigation officers to require answers and record evidence
(1)  An investigation officer may require a person to answer questions in relation to a matter connected with an investigation purpose if the officer suspects on reasonable grounds:
(a)  that it is necessary to require information about the matter for that purpose, and
(b)  that the person has knowledge of the matter.
(2)  The investigation authority 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 investigation officer may, by notice in writing, require a person 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 is to be:
(a)  a place or 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 investigation officer that is reasonable in the circumstances.
(5)  An investigation officer may exercise a power under this section whether or not a power of entry is being or has been exercised.
119L   Recording of evidence
(1)  An investigation officer may cause any questions and answers to questions given under this Division to be recorded if the officer has informed the person who is to be questioned that the record is to be made.
(2)  A record may be made using sound recording apparatus or audio visual apparatus, or any other method determined by the investigation officer.
(3)  A copy of any such record must be provided by the investigation officer to the person who is questioned as soon as practicable after it is made.
(4)  A record may be made under this section despite the provisions of any other law.
Subdivision 4 Miscellaneous provisions applying to exercise of powers
119M   Offences
(1)  A person must not, without reasonable excuse, fail to comply with a requirement made of the person by an investigation officer in accordance with this Division.
(2)  A person must not furnish any information or do any other thing in purported compliance with a requirement made under this Division that the person knows is false or misleading in a material respect.
(3)  A person must not intentionally delay or obstruct an investigation officer in the exercise of the officer’s powers under this Division.
(4)  The maximum penalty for an offence under section 125 arising under this section is a tier 3 maximum penalty.
119N   Identification card to be produced
(1)  An investigation officer who is exercising a function under this Division must produce the officer’s identification card, if requested to do so by a person affected by the exercise of the function.
(2)  In this section, identification card means an identification card issued under section 119B (4) or identification of the kind referred to in section 119B (5).
119O   Assistance for investigation officers
The investigation authority may, by notice in writing given to the owner or occupier of premises, require the owner or occupier to provide reasonable assistance and facilities to an investigation officer in the exercise of the officer’s powers under this Division. The notice is to specify the assistance and facilities to be provided and the time and manner in which they are to be provided.
119P   Compensation
The State must compensate all interested parties for any damage caused by a departmental investigation officer (and a council must compensate all interested parties for any damage caused by a council investigation officer) in exercising a power of entering premises but not any damage caused by the exercise of any other power, unless the occupier obstructed or hindered the officer in the exercise of the power of entry.
119Q   Recovery of cost of entry and inspection
If, as a result of an inspection of premises under this Division by an investigation officer, the investigation authority requires any work to be carried out on or in the premises, the investigation authority may recover the reasonable costs of the entry and inspection from the owner or occupier of the premises.
119R   Notices
(1)  More than one notice under a provision of this Division may be given to the same person.
(2)  A notice given under this Division may be revoked or varied by a subsequent notice or notices (including by extending the time for compliance with the notice).
(3)  A notice may be given under this Division to a person in respect of a matter or thing even though the person is outside the State, or the matter or thing occurs or is located outside the State, so long as the matter or thing affects the environment of this State.
119S   Provisions relating to requirements to furnish records or information or answer questions
(1) Warning to be given on each occasion A person is not guilty of an offence of failing to comply with a requirement under this Division to furnish records or information or to answer a question unless the person was warned on that occasion that a failure to comply is an offence.
(2) Self-incrimination not an excuse A person is not excused from a requirement under this Division to furnish records or information or to answer a question on the ground that the record, information or answer might incriminate the person or make the person liable to a penalty.
(3) Information or answer not admissible if objection made However, any information furnished or answer given by a natural person in compliance with a requirement under this Division is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this Division) if:
(a)  the person objected at the time to doing so on the ground that it might incriminate the person, or
(b)  the person was not warned on that occasion that the person may object to furnishing the information or giving the answer on the ground that it might incriminate the person.
(4) Records admissible Any record furnished by a person in compliance with a requirement under this Division is not inadmissible in evidence against the person in criminal proceedings on the ground that the record might incriminate the person.
(5) Further information Further information obtained as a result of a record or information furnished or of an answer given in compliance with a requirement under this Division is not inadmissible on the ground:
(a)  that the record or information had to be furnished or the answer had to be given, or
(b)  that the record or information furnished or answer given might incriminate the person.
119T   Fire brigades inspection powers
(1)  An authorised fire officer may exercise the powers of an investigation officer under this Division for the purpose of inspecting a building to determine whether or not:
(a)  adequate provision for fire safety has been made in or in connection with the building, or
(b)  the fire safety provisions prescribed for the purposes of this section by the regulations have been complied with.
(2)  An authorised fire officer cannot inspect premises under this section (other than places of shared accommodation) for the purposes of determining whether or not adequate provision for fire safety has been made except:
(a)  when requested to do so by the council of the area in which the building is located, or
(b)  when requested to do so by a person who holds himself or herself out as the owner, lessee or occupier of the building, or
(c)  when the Commissioner of Fire and Rescue NSW 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 Fire and Rescue NSW, make available a council investigation officer for the purposes of an inspection under this section, and the officer concerned is to be present during the inspection.
(4)  The Commissioner of Fire and Rescue NSW must send a report of any inspection carried out under this section to the council concerned.
(5)  This Division applies (subject to the regulations) to an authorised fire officer in the same way that it applies to a council investigation officer. For that purpose (and subject to the regulations), a reference in this Division to the investigating authority is taken to be a reference to the Commissioner of Fire and Rescue NSW.
(6)  A council must, at the written request of the Commissioner of Fire and Rescue NSW, 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. As soon as practicable after such an inspection has been carried out, the council must send a report of the inspection to the Commissioner.
119U   Accredited certifiers
(1)  The regulations may confer on an accredited certifier specified powers of a council investigation officer under this Division for the purpose of exercising functions under this Act as an accredited certifier.
(2)  This Act applies (subject to the regulations) to any such accredited certifier in the same way that it applies to a council investigation officer.