Western Australian Current Acts Western Australian Current Acts (1) In this section, a
reference to a power of entry , and cognate expressions, includes a reference
to the power of an energy operator to carry out the works or perform the
duties and exercise the powers necessary to achieve the purpose for which
entry on the land, premises or thing affected is sought, and to occupy that
land for those purposes.
(2) Where due notice
has been served upon the owner or occupier of that land, premises or thing an
energy operator may for the purposes of this Act or any other Act that confers
powers on the energy operator, including the purposes referred to in
subsection (10), lawfully enter on to any land, premises or thing not under
the control or management of the energy operator notwithstanding that the
energy operator has not obtained the consent of the owner or occupier, but
except as is otherwise provided in this Act such an entry shall not be lawful
unless notice has been served or such consent has been obtained.
(3) The power of entry
conferred by this section does not authorise or require an energy operator to
acquire any interest in any land except such as —
(a) the
energy operator elects to acquire by agreement; or
(b) the
energy operator elects to lawfully take under Part 9 of the
Land Administration Act 1997 , as read with section 45; or
(c) the
energy operator is required to acquire pursuant to section 176 of the
Land Administration Act 1997 .
(4) A notice required
by this Act to be given in relation to any entry shall specify the purpose for
which entry is required and shall continue to have effect for so long as that
requirement subsists, and successive entries for that purpose shall be taken
to be entries to which the notice relates.
(5) Where the power of
entry is for any reason exercised without the prior service of a notice
required under this Act, it shall be the duty of an energy operator to cause
notice of the nature of the entry and of any other powers exercised to be
given thereafter where that is practicable.
(6) A notice served
pursuant to this section for the purposes of the exercise of the power of
entry shall not be taken to have effect as a notice for any of the purposes
for which a notice is required under Part 9 of the
Land Administration Act 1997 .
(7) Where it is shown
to the satisfaction of a Justice of the Peace that entry on or into any land,
premises or thing is reasonably required by an energy operator for the purpose
of the performance of a function of the energy operator but that entry has
been refused or the entry is opposed or prevented, or in any case where such
land, premises or thing is unoccupied and access cannot be obtained or a
notice required by this Act cannot be served without undue delay or
difficulty, the justice may, by warrant in the form prescribed by regulations
made under this Act, authorise the energy operator by its officers or
servants, together with such other persons as are named in the warrant, or any
police officer, to enter upon the land, premises or thing, using such force as
may be necessary, for the purpose therein specified and any such warrant shall
continue to have effect until the purpose for which it was granted has been
satisfied.
(8) Where in the
opinion of an energy operator circumstances have arisen that may occasion
undue delay in effecting entry on or into any land, premises or thing or in
the carrying out of any works but the provisions of subsection (7) are not
appropriate to the circumstances, the energy operator may apply to the Supreme
Court ex parte by notice of motion, notwithstanding that no cause or matter
between the parties is before the Court or that no previous notice has been
given to any party affected thereby, for the grant of an injunction
prohibiting the persons therein specified from opposing or preventing the
exercise by the energy operator of its powers, or for an order directing the
energy operator as to the exercise of powers conferred by this Act in the
circumstances specified in that order, or for both such an injunction and such
an order.
(9) The owner or
occupier of any land, premises or thing supplied with energy by an energy
operator or in, on or over which any works of the energy operator are lawfully
situate shall be deemed to have given consent to the energy operator to enter
and re-enter thereon or therein at all reasonable times for the purposes of
the performance of its functions in relation to any such supply or works and
no notice under this Act is required unless an agreement in writing entered
into by that owner or occupier with the energy operator in relation thereto
otherwise provides.
(10) Where in the
opinion of an energy operator entry upon any land is necessary for the
purposes of inspecting or examining any land to determine the feasibility of
the use of that land for the purposes of the performance of its functions, or
as preliminary to any prospective or intended acquisition of that land or any
estate or interest in that land, and the energy operator does not elect to
exercise the powers conferred by Subdivision 2 of Division 3, or Division 4,
of Part 9 of the Land Administration Act 1997 or section 82 of the
Public Works Act 1902 , the energy operator may make entry for such purposes.
(11) Where an energy
operator intends to exercise any of the powers conferred by this section or
section 49, notice in writing of that intention shall, where practicable, be
given by the energy operator to the owner or occupier of the land, premises or
thing to be affected not less than 5 days before the power is to be exercised,
save where this Act otherwise provides.
(12) An energy
operator responsible for the operation of existing distribution works may
without prior notice enter on any street under the control of a local or other
statutory authority and there exercise such of the powers conferred by
section 49 as are of a minor or routine nature and are related only to the
maintenance or extension of those works, but where any exercise of the powers
conferred by that section is likely to affect the use or surface of any such
street or the position or use of any pipe, sewer, drain or tunnel then notice
in writing of the intention to carry out the works specified therein shall be
given by the energy operator to the authority concerned unless subsection (13)
or section 48 applies.
(13) Where the purpose
of the entry upon any land is to correct a defect in supply as a matter of
urgency, notice shall be given to all persons likely to be affected by the
entry where, and as soon as, it is practicable (unless section 48 applies) but
the entry may be effected forthwith.
(14) Where an energy
operator enters on to any land, premises, or thing without prior notice for
the purpose of exercising any power of the energy operator to carry out works
thereon then, wherever practicable, as soon as may be thereafter notice in
writing of the entry and of the works carried out, and of any further
intention of the energy operator relating thereto, shall be given to the owner
or occupier of the land affected.
(15) Where the owner
of any unoccupied land, premises or thing is not within the State, or for any
other sufficient reason it is not possible to give to any person, body or
authority the notice required by this Act, then for the purposes of this Act
the notice shall be deemed to have been given if it has been affixed or
displayed on or over a conspicuous part of the land, premises or thing
concerned and left so affixed or displayed for at least 5 days.
(16) Whenever an
energy operator, by its officers, servants or agents, enters or has entered on
or into any land, premises or thing the officer of the energy operator
responsible for the conduct of the entry shall, on request, produce evidence
of his appointment and of the authority under which the energy operator claims
a right of entry.
[Section 46 amended: No. 89 of 1994 s. 17, 39, 40
and 41; No. 31 of 1997 s. 26(19) and (20) and 142; No. 58 of 1999 s. 83; No.
33 of 2004 s. 43.]