One of the changes to the EP&A Act is to replace “Authorised Persons” with “Investigation Officers”.
The Amending Regulation (cl.39) includes savings and transitional provisions to the effect that persons who were authorised by a council as an “authorised person” when the legislation was amended are taken to be council investigation officers. A written authority issued to an authorised person is taken to be an identification card. As such, no new appointments need to be made in order to comply with the legislation.
However, when Councils come to review their authorisations and appointments, Councils should bear in mind that a “Council Investigation Officer” also needs to be appointed as an Authorised Person for the purposes of s127A of the EP&A Act if that person needs to be able to serve penalty notices.
Investigation Officers are required to be provided with an “identification card” as an investigation officer, but unlike previously, there is no legislatively prescribed content of such cards.
These officers should familiarise themselves with the new Part 6 Division 1C (Investigative powers). Click here to read the legislation.
In particular, Investigation Officers should be aware that their powers of entry have changed and are now currently as follows:
|Type of premises||Power of entry||Further information|
|Non-residential premises||Any premises at which the officer reasonably suspects that any industrial, agricultural or commercial activities are being carried out – at any time during which those activities are being carried out there.||No written notice is required.
|Any other premises – at any reasonable time.||No written notice is required.|
|A part of premises used for residential premises only||With the consent of the occupier (defined to mean the person who has the management or control of the premises (including a tenant or other lawful occupant who is not the owner).||No written notice is required.
Note that consent of the owner of a premises is not sufficient unless inspection is necessary for the purpose of issuing a building certificate or to inspect work being carried out under a consent etc.
|Under the authority of a search warrant||No written notice is required.|
|If it is necessary to do so to inspect work being carried out under a consent, approval or certificate under this Act||The notice requirements (s119E) must be followed except:
(a) if entry to the premises is made with the consent of the owner or occupier of the premises, or
(b) if entry to the premises is made under the authority of a search warrant issued under this Division, or
(c) if entry to the premises is required because of the existence or reasonable likelihood of a serious risk to health or safety, or
(d) if entry is required urgently and the case is one in which the investigation authority has authorised in writing (either generally or in the particular case) entry without notice.
|If a building certificate has been sought under this Act and it is necessary to do so to inspect the premises for the purposes of issuing the certificate.|
For subscribing Councils, Local Government Legal’s Delegations Database has been amended to include amended delegations and the new authorised person type of Council Investigation Officer.
Note: This information is not to be relied upon as legal advice.