WRITTEN BY Victoria McGinness and Alice Menyhart
Council officers often need to enter private premises as part of their job. However, figuring out when you can enter property, where you can go and what you can do can be confusing. This Essential Guide explains the powers of entry of Council officers under legislation.
Any person who enters the property of another person must be able to justify their entry by showing that they have the consent of the occupier or otherwise had lawful authority to enter the premises. Any entry otherwise will be a trespass.
Council officers, like all people, have an implied licence at common law to enter onto land to which access is provided, unobstructed, for the purpose of attending the front door to communicate with or deliver something to a person in the dwelling. However, this licence can be expressly or impliedly revoked by the owner/occupier at any time – for example, by asking the officer to leave, placing signs prohibiting entry (e.g. “no trespassing”) or by locking the premises.
Council officers are given the authority to enter private premises under various statutes. The three main pieces of legislation are the Local Government Act 1993 (NSW) (‘LG Act’), the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’), and the Protection of the Environment Operations Act 1997(‘POEO Act’). Other legislation, such as the Swimming Pools Act 1992 (NSW) and the Companion Animals Act 1998 (NSW), also authorises entry under limited circumstances.
To work out when and how officers can enter premises beyond just knocking at the front door, officers need to know whether the legislation empowers the entry. Below, we briefly explain the requirements of entry under the LG Act, the EPA Act and the POEO Act.
Who can enter premises will generally depend on the purpose of the entry:
The relevant legislation may also permit the Council to be accompanied by other people in certain circumstances. For example, an investigation officer under the EPA Act may enter premises with the aid of such investigation officers, police officers or other persons as the investigation officer considers necessary.
Across all three statues, a distinction is made between premises (or that part of the premises) used for residential purposes and premises used for non-residential purposes, with stricter requirements regarding entry applying to the former.
Under the LG Act, an officer can enter any non-residential premises in reasonable daytime hours, or at any time when business is in progress or is usually carried on at the premises.
Under s 9.16(1) the EPA Act and s 196 the POEO Act, authorised officers can enter any premises where they reasonably suspect that any industrial, agricultural, or commercial activities are being carried out at any time when those activities are being carried out. They can enter any other premises at any reasonable time. Additionally, authorised officers under the POEO Act can enter premises where they reasonably suspect pollution has been, is being or is likely to be caused at any time.
LG Act and EPA Act
Under s 200 of the LG Act and s 9.16 of the EPA Act, officers can only enter premises (or that part of premises) being used for residential purposes if:
Officers can also enter residential premises under the EPA Act where a building certificate has been sought under the Act and it is necessary to inspect the premises to issue the certificate.
Residential premises are not defined in the LG Act and EPA Act. However, ‘premises’ is defined in each Act, and includes buildings, land, tents, swimming pools and boats.
What ‘part” of premises is being used for a residential purpose will depend on the circumstances of each case. It will certainly include any dwelling and its immediate curtilage. In carrying out any inspection, the authorised person should be looking for signs that parts of the site are being used for residential purposes. There is no requirement that the residential use be lawful. For example, if it is apparent that a shed is being lived in (e.g. there are beds, kitchen and bathroom facilities.), then it is likely that it is being used for a residential purpose and the restrictions on access which apply to residential premises should be followed.
Under s 197 of the POEO Act, authorised officers must have either the permission of the occupier or a warrant to enter a part of premises used only for residential purposes. This provision is less restrictive than the provisions in the LG Act and EPA Act because it does not apply to premises used for residential and other purposes. Subject to that proviso, the area used for residential purposes will include ‘the building, structure or particular place physically used to provide residential accommodation’. It may also include the immediate curtilage of such structures, however it does not include the entire parcel of land on which the accommodation is located.
LG Act and EPA Act
When entry is authorised by the LG Act, the Council needs to give the owner/occupier of the premises written notice of its intended entry to both residential and non-residential premises before the date of entry.
Under the EPA Act, an officer must give written notice of their intention to enter 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 the Act or for the purpose of issuing a building certificate sought in respect of the premises. For entry to non-residential premises under the EPA Act, prior notice is not required to be given.
Notice also does not need to be given under the EPA/LG Act where:
Further, notice doesn’t need to be given for entry under the LG Act where entry is made only to read a meter or other device for measuring supply of water to the premises from the council’s water mains, or discharge of sewage/waste matter from the premises into the council’s sewer mains. Notice is also not required where entry is made under the EPA Act with the authority of a search warrant.
If entry is made under the LG Act in an emergency without giving notice, the officer should promptly notify the Council, who must then give notice of the entry to the appropriate people/authorities.
Notice is not required for entry under s 196 of the POEO Act to non-residential premises. When entering residential premises under the POEO Act, notice does not need to be provided ahead of entry, but should be provided at the time of entry or within 48 hours.
When entering premises under the LG Act, reasonable force can only be used to gain entry to non‑residential premises if specific written authority is given by the council under s 194.
In contrast, under both the EPA Act and the POEO Act, authorised persons can use reasonable force to enter premises (including residential premises) without prior written authority from the Council.
If entry is gained using force under the LG Act or the EPA Act, the officer should promptly notify the Council, who must then give notice of the entry to the appropriate persons or authorities.
Under the LG Act, unless the officer has a search warrant, they must be in possession of a written authority issued by the Council and produce it if requested by the owner or occupier.
An officer exercising functions under the EPA Act or POEO Act must produce the officer’s identification card, if requested to do so by a person affected by their entry of land.
Once they have legally entered a premises, Council officers have a wide range of powers. These include the right to inspect premises or anything on them and to, take measurements, surveys, samples or photographs.
Council officers should take care to do as little damage as possible in the course of an inspection. Under the EPA Act and the LG Act, this specifically includes actions like providing other means of access in place of any taken away or interrupted and entering fenced land through existing openings, or (if that’s not practical) fully restoring any damage to fences. The Council may also be obliged to pay compensation for damage caused during entry.
In our experience, during a site inspection, Council officers will often ask questions of the owner or occupier if they are present. In these circumstances, if, at any time, the officer forms a belief that there is sufficient evidence to establish that the person has committed an offence, the officer should be cognisant of the requirement under s.139 of the Evidence Act 1995 to provide a caution that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
If you have any questions about the power to enter premises, please get in touch with our Planning, Environment and Local Government team.
Please note that the information detailed in this Essential Guide is correct as of 16 May 2023. If you have a specific question regarding entry to land, please call Alice Menyhart or Victoria McGinness from our Planning, Environment & Local Government team.
The content contained in this guide is not legal advice. Readers should contact us and receive our specific advice on the particular situation that concerns them.
TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333;  NSWCA 82 at - (Spigelman CJ, Mason P and Grove J agreeing), applying Coco v The Queen (1994) 179 CLR 427;  HCA 15
 Halliday v Neville  HCA 80 [at 7]; Waverley Council v Bobolas  NSWLEC 116 at -.
 Romani v State of New South Wales  NSWSC 49.
 Roy v O’Neill (2020) 385 ALR 187 at .
 Section 9.16(6).
 LG Act, s 191(2)
 A grant of permission from an occupier of premises to enter those premises may be revoked: see Kuru v New South Wales (2008) 236 CLR 1. A co-owner may revoke a grant of permission given by another co-owner if the original grant was excessive and would unreasonably interfere with the possessory rights of other co-owners: New South Wales v Koumdjiev (2005) 63 NSWLR 353.
 While ss 191, 193 and 200 of the LGA provide limits on a council’s power to enter residential properties, the court may permit entry without regard to these limits when issuing orders under s 678(10): Manly Council v Moffit (2006) 146 LGERA 215 at –; Council of the City of Sydney v The Estate of the Late Alfred Sulligoli  NSWLEC 778 at .
 LG Act, Dictionary and EPA Act, s.1.4.
 Gerondal v Eurobodalla Shire Council  NSWLEC 77 [40-47].
 LG Act, s 193(2).
 EPA Act, s 9.17.
 LG Act, s 195.
 Wollongong City Council v Ensile Pty Ltd  NSWLEC 146 , Jagot J.
 LDF Enterprise Pty Ltd v State of New South Wales (2017) 95 (NSWLR) 70 , in which the NSWCA applies s 67 of the LEPR Act which governs warrants issued under the POEO Act as per s 199(3) of the POEO Act.
 EPA Act, s 9.16(5); POEO Act, s 196(3).
 LG Act, s 195; EPA Act, s 9.21.
 LG Act, s 199(1).
 EPA Act, s 9.26; POEO Act, s.189.
 LG Act, s 192; EPA Act s 9.18; POEO Act s 198.
 LG Act, s 196; EPA Act s 9.20; POEO Act, s 201.
 LG Act, s 196; EPA Act, s 9.20.
 LG Act, s 198; POEO Act, s 202.