Background
Burwood Council brought civil enforcement proceedings concerning building work and the use of a three-level property at Croydon. A complying development certificate issued in December 2023 authorised alterations and additions. Council officers inspected the property under a warrant in February 2024, then visited again on 7 August 2024 and 18 December 2025.
The respondents objected to evidence from the latter two visits, arguing it had been unlawfully obtained and should be excluded under s 138 of the Evidence Act 1995 (NSW). They contended the officers had not established a lawful basis to enter residential premises under ss 9.16 and 9.17 of the Environmental Planning and Assessment Act 1979 (NSW).
The Court’s Holding
Pain J held that the challenged evidence was admissible. For the August 2024 visit, the Court found the respondents had not shown that the officers could not rely on s 9.16(2)(c), which permits entry to residential premises where necessary to inspect work carried out under a consent, approval or certificate. The owner had consented to entry for the purposes of the notice exception in s 9.17(4)(a).
The Court rejected the proposed narrow reading that “work being carried out” meant only work occurring at, or immediately before, the inspection. In context, the provision could extend to completed work. For the December 2025 visit, the written notice to the owner satisfied s 9.17: it specified the inspection date and was given beforehand. Although the notice referred to unauthorised “use,” the surrounding evidence showed the inspection also concerned compliance with the complying development certificate.
Key Takeaways
- Section 9.16(2)(c) can authorise inspection of work completed before the inspection; it is not confined to work underway at that moment.
- For an inspection under that provision, s 9.17 permits written notice to either the owner or occupier of residential premises.
- The respondents did not establish that the challenged evidence was obtained unlawfully, so s 138 did not require its exclusion.
Why It Matters
The ruling gives practical effect to councils’ statutory power to investigate compliance with planning approvals and complying development certificates at residential properties. Requiring inspectors to attend only while construction is actively occurring would, the Court said, make the power largely ineffective.
The decision was a procedural evidentiary ruling, not a final determination of the alleged planning or building breaches.