Local councils now have extensive powers to deal with local nuisances and litter under the Local Nuisance and Litter Control Act 2016 (SA). This includes powers to deal with unauthorised bill posting (previously dealt with as a criminal offence under the Summary Offences Act 1953 (SA)).
For further information about the extent of the powers and when they apply see the series of factsheets available on the Local Government Association website.
What is a local nuisance is defined broadly under section 17 of the Local Nuisance and Litter Control Act 2016 (SA).
Essentially, a local nuisance is any negative effect on the amenity value (agreeableness) of the area caused by:
Authorised officers are responsible for enforcement of the Local Nuisance and Litter Control Act 2016 and are authorised to make decisions about what constitutes a local nuisance under the Act or regulations.
An authorised officer includes specifically appointed council officers and employees. In addition, all police officers hold powers under the Act [s 12].
Powers of authorised officers
Authorised officers have the power to inspect any premises or vehicle at any reasonable time for any purpose connected with administering or enforcing the Local Nuisance and Litter Control Act 2016 [s 14(1)].
They may also ask questions of any person in a vehicle or on premises the subject of an inspection.
Where an authorised officer reasonably suspects that a person has committed (or is committing) an offence against the Act they may require them to provide their full name and residential address and provide proof of their identity and to answer any question that may be relevant to the administration or enforcement of the Act [s 14(1)(c)].
They may also give directions to stop or move a vehicle [s 14(1)(e)].
They are authorised to use reasonable force to enter any premises or vehicle and to open an item in a vehicle or on premises but only if a warrant has been issued by a magistrate or justice of the peace. An application for a warrant cannot be made to a justice of the peace who is a member, officer or employee of a council. Before a warrant is issued the magistrate or justice of the peace must be satisfied that there are reasonable grounds to suspect an offence has been committed (or is about to be committed) or that the warrant is reasonably required under the circumstances.
In the course of any inspection conducted on a vehicle or premises they may do the following under section 14(1)(b):
A vehicle owner, property owner or occupier must provide such assistance to an authorised officer as is reasonably required to complete an inspection [s 14(5)].
It is an offence to hinder or obstruct an authorised officer whilst performing their duties under the Act. Use of abusive language and threats also constitutes an offence as does refusing or failing to comply with directions made by an authorised officer or failing to answer a question or providing false of misleading information [s 14(6)].
Maximum penalty: $10 000
Under section 30 of the Act a council may issue a nuisance abatement notice requiring a person to discontinue a specified activity; refrain from carrying on a specified activity; or make good any damage to property that has occurred as a result of a contravention of the Act.
It is an offence to fail to comply with such a notice. The maximum penalty is $30 000 [expiation fee: $500].
It is an offence under the Act to carry on an activity that creates a local nuisance [s 18]. The definition of “carying on an activity” includes a failure to act and the occupier of a place from which the activity has occurred will be taken to have “carried on” the activity.
There are two levels of offence which are distinguished by whether there was an intention or disregard as to the impact of the activity or not.
Intentionally or recklessly carrying on an activity with knowledge that local nuisance will result attracts a maximum penalty of $30 000 for a natural person ($60 000 for a body corporate).
Carrying on an activity that results in local nuisance attracts a maximum penalty of $10 000 for a natural person (expiation fee: $500). In the case of a body corporate the maximum penalty of $20 000.
It is also an offence to cease carrying on an activity that is resulting in local nuisance [s 20]. If a person fails to comply with a request from an authorised officer to cease an activity resulting in local nuisance there is a maximum penalty of $5 000 (expiation fee: $210).
The Local Nuisance and Litter Control Act 2016 (SA) has extensive provisions dealing with the disposal of litter. Litter is defined broadly under section 22 but there are three main categories:
The penalties for dumping or discarding litter depend on the type and volume of the litter disposed. The table belows refers to offences committed by individuals. For information about the penalties that apply to a body corporate see section 22 of the Local Nuisance and Litter Control Act 2016 (SA).
|Offence||Maximum penalty (monetary)||Maximum penalty (imprisonment)||Expiation|
|Disposal of any amount of class A hazardous litter||$120 000||2 years||-|
|Disposal of 50 litres or more of class B hazardous litter or general litter||$30 000||6 months||$1 000|
|Disposal of up to 50 litres of class B hazardous litter||$10 000||-||$500|
|Disposal of up to 50 litres of general litter||$5 000||-||$210|
Litter is considered to have been disposed if it is deposited on land or in water, or blown or falling onto premises including from a vehicle [s 22(2)].
If requested by an authorised officer, the litter must be removed by the person responsible for having discarded it and failure to do so is an offence [s 24].
Maximum penalty: $5 000 [expiation fee: $210]
A person who reasonably suspects another person of having disposed of litter or having posted a bill on property without the consent of the owner or occupier may notify the relevant council [s 25]. This can be done in person, by letter, email or fax or online via the Dob in a Litterer Website or using the Dob in a Litterer app. See also the Public Litter Reporting fact sheet published by the Local Government Association.
Litter abatement notices
Under section 30 of the Act a council may issue a litter abatement notice requiring a person to discontinue a specified activity; refrain from carrying on a specified activity; clean up any litter that has been caused by a contravention of the Act or make good any damage to property caused by contravention of the Act.
It is an offence to fail to comply with such a notice. The maximum penalty is $30 000 [expiation fee: $500].
Remedies available under the Act
Under section 33 of the Act 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:
Who can make an application?
An application can be made by the Minister, a council, any person whose interests are affected by the matter that is the subject of the application or any other person (with the permission of the Court) [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 (i.e. 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 in order to be successful.
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. An application for interim orders must be made by the concerned party [s 33(13)] and may be made without notice and 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 that the alleged breach of the Act occurred [s 33(20)]. If an application is sought outside of this time period then the Attorney-General must provide his/her 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.
Generally any penalties will be recovered by negotiation or by application to the Environment, Resources and Development Court made by the Minister or relevant council.
However, where a breach of the Act requires proof of intention or other mental element a civil penalty cannot be recovered and criminal proceedings must be initiated [s 34(2)].
Before taking any action in the Environment, Resources and Development the Minister or a relevant council must consider the seriousness of the contravention, the previous record of the offender and any other relevant factors.
Before making an application to the Court the Minister or a relevant council must serve a notice advising the person that they may elect to be prosecuted for the breach and provide 21 days after service of the notice for the person to make an election if they choose.
The maximum amount that can be recovered as a civil penalty is the total of the amount specified by the Act as the criminal penalty (these are specified in the relevant sections) and the amount of any economic benefit acquired by the person as a result of the breach [s 34(4)].
Evidence of information (including documents) provided by a person is not admissible in criminal proceedings against them if the information was given in the course of negotiations or proceedings for the recovery of an amount as a civil penalty and the conduct forming the basis of the criminal proceedings is substantially the same as was alleged for the civil contravention [s 34(11)]. This does not apply to criminal proceedings relating to the making of a false or misleading statement.
Noise coming from neighbouring premises often causes disputes between neighbours. Typical complaints concern barking dogs, loud sound systems, air conditioners, lawn mowers, manufacturing machinery, unattended burglar alarm systems and parties.
A person who is upset by a neighbour's noise should first try talking to the neighbour to see if the noise can be stopped or reduced or restricted to certain hours of the day. If this fails it might be possible to arrange for a conference through a mediation service. Mediation can often settle a dispute such as this and so avoid the need for legal action; however a court application to stop the nuisance or award compensation is a further option.
Under section 17 of the Local Nuisance and Litter Control Act 2016 (SA) certain types of noise can fall within in the definition of a local nuisance, depending on the circumstances. If unable to resolve the problem by speaking to your neighbour you can lodge a complaint with your local council as they now have the authority to impose penalties for noise that meets the definition of a local nuisance. However, as explained below, not all noise falls under this definition and the action you can take will depend on whether or not the noise constitutes local nuisance.
Schedule 1 of the Local Nuisance and Litter Control Act 2016 (SA) expands on what activities involving noise fall within the definition of a local nuisance. This includes fixed domestic machinery noise, noise from activity on domestic premises, construction noise and waste collection noise.
As the definition under the Act is very general it may be useful to consult the Environment Protection (Noise) Policy 2007 for guidance on what is an acceptable level of noise.
Fixed domestic machinery
Noise generated by fixed machinery on domestic premises (e.g. air conditioners) will constitute a local nuisance if the noise is of such volume that it travels from the domestic premises to a habitable room, or an outdoor courtyard or entertainment area, on neighbouring premises.
Domestic activity noise
Other noise generated from domestic premises (e.g. non-fixed machinery, tools, equipment) can also be a local nuisance if the noise travels to neighbouring premises between the hours of:
Construction noise will fall under the definition of a local nuisance if the noise travels from the location of the construction activity neighbouring premises:
Waste collection noise
Noise from waste collection is prohibited:
However, there are provisions to allow waste collection activities to be undertaken before 9 am on a Sunday or public holiday or 7 am on any other day if it is required to avoid unreasonable interruption of vehicle or pedestrian traffic movement [see section 28 of the Environment Protection (Noise) Policy 2007].
Street or tree maintenance machinery
Noise from a street or tree maintenance machine is prohibited:
Building intruder alarm systems
A building intruder alarm system must not be operated unless:
The maximum penalty for causing a local nuisance under the Local Nuisance and Litter Control Act 2016 (SA) is $10 000 for a natural person and $20 000 for a body corporate. If the person has carried on an activity intentionally or recklessly and with knowledge it will result in a local nuisance the penalties are more severe. In these instances the maximum penalty for a natural person is $30 000 and for a body corporate $60 000 [s 18].
It is also an offence to fail to cease an activity if requested by an authorised officer. The maximum penalty is $5 000 (expiation fee: $210) [s 20].
Noise that is not a local nuisance
Not all noise comes within the definition of a local nuisance. The following are not defined as being a local nuisance [see Schedule 1 of the Local Nuisance and Litter Control Act 2016 for a comprehensive list]:
For further information on dealing with noise and neigbours see our Noisy Neighbours Factsheet.
Disputes also arise between neighbours over smoke from chimneys or incinerators, burning off in backyards, hot air from air conditioner exhausts, smells caused by animals and birds, chemical smells from factories and so on. Again it is best to try to solve such a dispute in a friendly manner, but if this does not help, a complaint can be made to the local council.
Under the Local Nuisance and Litter Control Act 2016 (SA) odours, dust, smoke or fumes may qualify as a local nuisance depending on the nature, intensity or extent (see below When do offensive odours, dust or smoke constitute a local nuisance?).
Burning off in the open
The ability to burn off in the open (such as using an open fire to cook food, prepare beverages, or using a campfire for warmth) is regulated by local councils pursuant to the Environment Protection (Air Quality) Policy 2016. Domestic incinerators are included in the definition of what constitutes burning in the open.
Different restrictions and requirements apply depending on whether the burning in the open is occurring within metropolitan Adelaide, or outside of metropolitan Adelaide.
In some instances, permits must be sought from council before burning in the open occurs.
The Environment Protection Authority's website on Burning in the Open provides guidance on what burning in the open activities are allowed and in what circumstances. Advice should also be sought from local council.
Burning off to reduce bush fire hazards is permitted so long as either the Fire and Emergency Services Act 2005 (SA) allows or the Environmental Protection Authority or local council has given written consent, either by individual permit or by general notice published in a newspaper. Burning off activities should also comply with any relevant CFS Code of Practice (available via the CFS Website), if the burning off occurs outside of metropolitan Adelaide.
Smoke from solid fuel (combustion) heaters
Section 12 of the Environment Protection (Air Quality) Policy 2016 provides guidance on what amounts to excessive smoke from slow combustion (solid fuel) heaters and other fires.
Smoke from a solid fuel heater will constitute a local nuisance in the following circumstances:
When do offensive odours, smoke or dust contitute a local nuisance?
The following conditions constitute a local nuisance under Schedule 1 of the Local Nuisance and Litter Control Act 2016 (SA):
Maximum penalty: $10 000 (or expiation fee of $315).
In addition, it is also an offence to distribute or authorise the distribution of bills for unauthorised posting [s 23(2)]. However, it will be a defence if it can be proved that the person did not forsee and could not have reasonably have been expected to foresee that the bills would be posted without consent.
Maximum penalty: $20 000 (for a body corporate) or $10 000 (for a natural person) or an expiation fee of $315.
If convicted of an offence under sections 23(1) or 23(2) the court may order an offender to pay the property owner or occupier compensation for loss and damage caused to property from the commission of the offence [s 23(4)].
If requested by an authorised officer a person must remove a bill posted on property as directed and failure to do so is an offence [s 24].
Maximum penalty: $5 000 (expiation fee: $210)
Unsightly conditions can constitute a local nuisance under section 17 of the Local Nuisance and Litter Control Act 2016 (SA). Exactly what constitutes unsightly conditions is detailed in Schedule 1 of the Act to include: