Remedies available under the Act

Under section 33 of the Local Nuisance and Litter Control Act 2016 (SA) the following applications may be made to the Environment, Resources and Development Court seeking orders:

The Environment, Resources and Development Court also has the power to make an order for exemplary damages [s 33 (1)(g)] and in doing so must consider the following [s 33(4)]:

Who can apply?

The Minister, a council, any person whose interests are affected or any other person (with the permission of the court) may apply to the court for orders [s 33(6)]. Where the court’s permission is required the court must be satisfied that the application would not be an abuse of process (an unfair use of legal proceedings to gain an advantage) [s 33(7)]. The court must also be satisfied that there is a real likelihood that the application will meet all the necessary requirements to succeed.

In the first instance, all applications are referred to a conference [s 33(12)] but the court may make an interim order if it is satisfied that it is necessary to preserve the interests of any of the parties to the proceedings. The concerned party must apply for interim orders and need not give notice [s 33(14)]. Interim orders may be made regardless of whether or not the matter has been referred to a conference [s 33(14)].

Time limit in which to make an application

An application must be made within 3 years after the date of the alleged breach of the Act [s 33(20)]. If an application is sought outside of this time period then the Attorney-General must provide their authorisation for the application to proceed.

Factors to consider in making an application

Before considering making an application the following factors need to be considered:

The Court may order an applicant to provide security for the payment of costs that may be awarded against them if the application is later dismissed [s 33(17)].

The Court has the power to order compensation for a respondent (the person against whom an application has been made) if satisfied that the respondent has not breached the Act, has suffered loss as a result of the actions of the applicant and that such an order is appropriate in the circumstances [s 33(18)].

Whilst the Court has the power to award costs in any proceedings the exercise of this power may be affected by other considerations that they are authorised to consider. In particular, when making a costs order the Court may consider whether the applicant was pursuing a personal interest only in making the application or whether the action was one affecting a wider (public) interest. They may also consider whether or not the application raises significant issues concerning the administration of the Local Nuisance and Litter Control Act 2016 (SA) [s 33(22),(23)]. These considerations may affect the amount of costs awarded.