Local Government have many powers of entry onto private property through various Acts of Parliament.
This update deals with the provisions of the Local Government Act 1995 (WA) (the Act) which are in addition to and not a derogation or erosion to any other powers of entry a local government may have under another Act of Parliament.
When does the Act apply?
Part 1 Division 2, Subdivision 3 of the Act deals with powers of entry. These provisions allow entry onto land – including private land – where entry is required to perform a function of the local government as set out in the Act.
“Subdivision 3 — Powers of entry
3.28. When this Subdivision applies
The powers of entry conferred by this Subdivision may be used
for performing any function that a local government has under
this Act if entry is required for the performance of the function
or in any other case in which entry is authorised by this Act
other than by a local law.
3.29. Powers of entry are additional
The powers of entry upon land conferred by this Subdivision are
in addition to and not in derogation of any power of entry
conferred by any other law.” Local Government Act 1995 (WA)
Therefore all the sections in this subdivision apply only where entry which is not authorised under another Act.
Local government officers can be assisted by people and equipment when effecting entry. For example a local government officer may use bolt cutters to remove a chain from a locked gate (but must afterward the entry secure the gate) or be assisted by police officers when entering a property.
Notice of Proposed Entry
Unless entry is required for an emergency purpose – in order to enter a property the consent of an owner or occupier must be obtained or notice of the proposed entry must have been given to the owner or occupier at least 24 hours before the proposed entry. This notice must detail the purpose for which entry is required and for as long as that purpose remains in place successive entries are deemed to relate to that single notice.
If entry is denied a warrant must be obtained for entry onto the property.
- entry is refused, opposed or prevented;
- entry cannot be obtained; or
- notice can not be given without unreasonable difficulty or without unreasonably delaying entry
then an entry warrant can be issued by a Justice of the Peace (JP) upon the application of the local government.
If a local government or its CEO is of the opinion that to comply with the entry provisions is impractical or unreasonable due to
“imminent risk of –
(a) injury or illness to any person; or
(b) a natural or other disaster or emergency; or
(c) such other occurrence as is prescribed for the purposes of this section.”
Then a local government may use reasonable force to exercise the power of entry without complying with the other provisions so long as notice of the entry is given to the owner or occupier as soon as it is practical to do so.
Purpose of Entry
Whilst entering a property, a local government officer must give the purpose of the entry and legislative basis for entry, if requested to do so.
Local Government Officers should always enter properties using the correct Act and in accordance with the provisions of that Act.
Powers of entry under the Act (except in emergency situations) requires one of the following:
- Consent of an owner or occupier.
- Notice of the proposed entry to be given to the owner at least 24 hours prior to the proposed entry.
- An entry warrant.
For more information on this paper or any other local government matter please contact Anne Wood on (08) 9321 3755.
The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.