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

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 special justice. An application for a warrant cannot be made to a special justice who is a member, officer or employee of a council. Before a warrant is issued the magistrate or special justice 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

Abatement notices

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 for a natural person or $60,000 for a body corporate [expiation fee: $500].

Penalties

It is an offence under the Act to carry on an activity that creates a local nuisance [s 18]. The definition of “carrying 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 below 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).

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].

Citizen’s notification

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 [Local Nuisance and Litter Control Regulations 2017(SA) sch 1). See also the Public Litter Reporting fact sheet (link opens new window) 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.

The Local Nuisance and Litter Control Act 2016 (SA) allows the Minister or a relevant council to impose civil penalties for any breaches of the Act as an alternative to criminal prosecution [s 34].

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, lawnmowers, 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 may be worth contacting a mediation service. Mediation can often settle a dispute such as this and avoid the need for legal action which should be viewed as a last resort.

Most domestic noise is governed by the Local Nuisance and Litter Control Act 2016 (SA). Under this Act, it is a criminal offence to cause a local nuisance. If a noise falls within the definition of a local nuisance, complaints may be handled by your local council.

A noisy activity may be a local nuisance if the level, nature or extent of the noise (including its volume, pitch, vibrational frequency, prevalence or frequency of occurrence) unreasonably interferes with the enjoyment of neighbouring premises.

Some examples include:

Fixed machine noise on domestic premises

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

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 8 pm and 8 am (9 am on Sunday).

Construction noise

Construction noise will fall under the definition of a local nuisance if the noise travels from the location of the construction activity to neighbouring premises before 7 am and after 7 pm from Monday to Saturday, or at any time on a Sunday or public holiday.

Waste collection, street sweeping and tree maintenance

Waste collection, public street sweeping and tree maintenance noise that travels to neighbouring premises before 7 am and after 7 pm from Monday to Saturday, or before 9 am and after 7 pm on a Sunday or public holiday, is prohibited.

Penalties

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 (with an expiation fee of $500). 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 declared under Schedule 1 of the Local Nuisance and Litter Control Act 2016 (SA) as not constituting a local nuisance:

What can be done about a local nuisance?

If neighbours are unable to resolve a noise-related issue between themselves or with the help of a mediator, a complaint may be made to the local council. Authorised officers can decide whether or not the noise in question constitutes a local nuisance. If it does, they may issue a nuisance abatement notice which will require the neighbour to stop making the noise. They may also issue a fine.

Anyone affected by a local nuisance may apply to the Environment, Resources and Development Court for orders to stop the nuisance. However, an unsuccessful application may result in the applicant having to pay the legal and non-legal costs of the neighbour. Legal advice should be sought before making such an application to the court.

For further information on dealing with noise and neighbours see our Noisy Neighbours Brochure.

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

Burning off to reduce bush fire hazards is permitted so long as either the Fire and Emergency Services Act 2005 (SA) and associated regulations allow, 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):

Under the Local Nuisance and Litter Control Act 2016 (SA) it is an offence to post a bill on property without the consent of the owner or occupier of the property [s 23(1)].

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 20].

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: