46The power of entry, generally

##### 46. The power of entry, generally (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.]