The City of Armadale recently successfully defended two
challenges to the provision in its Town Planning Scheme ("the
Scheme") for authorised officers to enter and inspect
properties for the purpose of ascertaining whether the Planning and
Development Act 2005 ("the Act") and the Scheme were
being complied with.
The Accused was seeking to exclude photographic evidence taken
by an authorised City of Armadale Officer to enter properties to
ascertain whether the Act and the Scheme were being complied
with.
First Challenge
The first challenge was on the grounds that clause 11.1.2 in the
Scheme was "ultra vires" (or without power) in that it
went beyond the scope of the Act. The argument was that:
the Local Government Act 1995 limited the ability of the
Planning and Development Act 2005 to allow wider powers of entry
and that therefore a warrant was required (and had not been
obtained); and
the Scheme clause attempted to confer wider powers of entry
than the Planning and Development Act 2005 clauses permitted.
Part (a) of the first challenge was that as local governments
only exist because of the Local Government Act 1995, all of their
actions are governed by that Act. However, this challenge failed
due to section 3.29 of the 1995 Act which states that:
"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."
Accordingly, the entry powers in the Local Government Act 1995
may be used to effect entry onto a property without consent but if
the entry is for the purposes of another Act of Parliament, then
any powers of entry under that other Act merely supplement the
entry powers which exist under the Local Government Act 1995.
Part (b) of the first challenge was also dismissed on the basis
that the powers of entry and inspection contained in Clause 11.1.2
of the Scheme were within the scope of the sections of the Planning
and Development Act 2005 which enabled Town Planning Schemes to
provide for powers of entry and inspection (sections 69 and 256(1)
and Schedule 7, clause 11 (2) of the Planning and Development Act
2005).
Clause 11.1.2 of the Scheme reads;
"11.1.2 An employee of the City authorised by the City
or Chief Executive Officer of the City may, at all reasonable times
and with such assistance as may be required, enter any building or
land for the purpose of ascertaining whether the provisions of the
Scheme are being observed."
Second Challenge
The second challenge was that the officer who had entered the
property had not been correctly authorised by the City. This was
quickly dealt with by providing the court with a certified copy of
the committee meeting minutes recommending the authorisation and
the full council meeting minutes adopting that recommendation.
Points to note
Local Governments:
Make sure that officers who enter properties without warrants
have been duly authorised to do so.
If relying on evidence which has been obtained using powers of
entry under Planning Schemes, make sure that you have
evidence of the authorisation having occurred.
Land owners and occupiers:
Most Local Governments have clauses in their planning schemes
to enable authorised officers to enter properties without prior
warning and without a warrant.
Most Local Government officers carry authorisation cards but
authorisation can be checked directly with the Local
Government.
Be aware that Local Government officers are public officers and
therefore obstruction of a Local Government officer in the
performance of his or her duties is an offence.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Kott Gunning is a proud member of
Specific Questions relating to this article should be addressed directly to the author.
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