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Contents (2012 - 74)
Boarding Houses Act 2012 No 74
Current version for 7 July 2017 to date (accessed 18 November 2017 at 10:05)
Part 2 Division 4
Division 4 Initial compliance investigations for registered boarding houses
16   Requirement to inspect certain registered boarding houses within 12 months of registration
(1)  For the purposes of this Division, a registered boarding house is a registrable boarding house that is registered.
(2)  A council is to arrange for an initial compliance investigation to be conducted under this Division for each registered boarding house located in its area:
(a)  if the house has not previously been registered—within the period of 12 months after the house is first registered, or
(b)  if the house has been re-registered following a period of not having been registered—within the period of 12 months after the house is re-registered, or
(c)  if a proprietor of the house has changed since it was registered or re-registered—within the period of 12 months after the new proprietor’s name is recorded in the Register.
(3)  An initial compliance investigation is an investigation into whether a registered boarding house complies with requirements imposed by or under the Local Government Act 1993 and the Environmental Planning and Assessment Act 1979 with respect to the use of the boarding house, including (but not limited to):
(a)  requirements in relation to building and fire safety, and
(b)  relevant standards or requirements for places of shared accommodation for the purposes of Order No 5 (d) in the Table to section 124 of the Local Government Act 1993.
(4)  A council is not required to arrange for an initial compliance investigation of a registered boarding house if the premises of the boarding house were inspected under the Local Government Act 1993 or this Division at any time in the period of 12 months immediately before the date on which the boarding house was registered or re-registered or a new proprietor’s name was recorded in the Register (as the case requires).
17   Power of entry
(1)  For the purpose of conducting an initial compliance investigation, a council employee (or other person) authorised by a council may enter the premises of a registered boarding house, including any part of the premises used for residential purposes.
(2)  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.
18   Inspections and investigations
For the purpose of conducting an initial compliance investigation, a person authorised to enter premises under this Division may:
(a)  inspect the premises and any food, vehicle, 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 the Local Government Act 1993 or the Environmental Planning and Assessment Act 1979 (or the regulations or other instruments under those Acts), 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.
19   Notice of entry
(1)  Before a person authorised to enter premises under this Division does so, the council must give the proprietor or manager 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 proprietor or manager 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 to the premises 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.
20   Use of force
(1)  Reasonable force may be used for the purpose of gaining entry to any 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.
21   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 proprietor or manager,
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.
22   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.
(3)  If, in the exercise of a function under this Division, any pit, trench, hole or bore is made, the council must, if the proprietor or manager 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.
23   Recovery of fee for initial compliance investigation
A council may charge and recover an approved fee under section 608 (Council fees for services) of the Local Government Act 1993 for the conduct of an initial compliance investigation.
24   Compensation
(1)  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 or any other Act.
(2)  Section 730 of the Local Government Act 1993 applies to the resolution of claims for compensation under this section in the same way as it applies to the resolution of claims for compensation under section 198 of that Act.
25   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 proprietor or manager 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)  bears the signature of the general manager of the council.
(3)  This section does not apply to a power conferred by a search warrant.
26   Relationship with other Acts
Nothing in this Division limits the exercise of powers or other functions by councils under the Local Government Act 1993 or any other Act.