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.

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