Local nuisance is defined broadly under section 17 of the Local Nuisance and Litter Control Act 2016 (SA).

It includes any adverse (negative) effect on the amenity value (agreeableness) of the area caused by any of the following things which unreasonably interfere, or are likely to interfere unreasonably, with the enjoyment of the area by people within the area:

Local nuisance also includes:

Authorised officers

Authorised officers are responsible for enforcement of the Local Nuisance and Litter Control Act 2016 (SA) and are authorised to make decisions about what constitutes a local nuisance under the Act.

An authorised officer includes specifically appointed council officers and employees. In addition, all police officers are authorised officers [s 12].

Powers of authorised officers

Authorised officers may inspect any premises or vehicle at any reasonable time for any purpose connected with administering or enforcing the Act [s 14(1)].

Where an authorised officer reasonably suspects that a person has committed, or is committing or about to commit, 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) & (d)].

Authorised officers may also give directions to stop or move a vehicle [s 14(1)(e)].

Authorised officers may only use reasonable force to enter any premises or vehicle or to open an item in a vehicle or on premises if they have a court-issued search warrant [s 14(3)]. An application for a warrant cannot be made to a justice who is a member, officer or employee of a council. Before a warrant is issued the magistrate or 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 [s 14(4)].

In the course of any inspection conducted on a vehicle or premises authorised officers may do the following under section 14(1)(b) of the Act:

A vehicle owner, property owner or occupier must provide such assistance to an authorised officer as is reasonably required to facilitate the inspection [s 14(5)].

Offences

It is an offence to hinder or obstruct an authorised officer, or person assisting an authorised officer, whilst exercising their powers under the Act. It is also an offence to use abusive, threatening or insulting language, refusing or failing to comply with a requirement or direction made by an authorised officer, failing to answer a question, and impersonating an authorised officer [s 14(6)]. The maximum penalty for these offences is $10,000.

It is an offence for an authorised officer, or a person assisting an authorised officer, to use offensive language or, without lawful authority, hinder or obstruct or use or threaten to use force in relation to any other person. The maximum penalty is $10,000.

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. The occupier or person in charge 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 an individual ($60,000 for a body corporate) [s 18(1)].

Carrying on an activity that results in local nuisance attracts a maximum penalty of $10,000 for an individual (with an expiation fee of $500). In the case of a body corporate the maximum penalty is $20,000 (with an expiation fee of $1,000) [s 18(2)].

It is also an offence if a person fails to comply with a request from an authorised officer to:

The maximum penalty is $5,000 (with an expiation fee of $210 for an individual and $500 for a body corporate) [s 20].

Vehicle Owner Liability

If an activity causing local nuisance is undertaken in, at or from a vehicle, or in connection with the use of a vehicle, and the activity results in an offence, then the owner of the vehicle may be guilty of an offence and is liable for penalty and expiation [s 26].

Nuisance abatement notices

The Minister for Climate, Environment and Water or a council may issue a written Nuisance Abatement Notice to a person causing a nuisance [s 30].

These notices impose certain requirements upon a person in order to rectify a situation and secure compliance.

The nuisance abatement notice may require a person to do certain things, including:

It is an offence to fail to comply with such a notice without reasonable excuse. The maximum penalty for a body corporate is $60,000 and for an individual is $30,000. The expiation fee for a body corporate is $1,000 and for an individual is $500 [s 30(9)].

If the requirements of a nuisance abatement notice are not complied with, the Minister or council may take any action required by the notice [s 31(1)]. An authorised person taking such action may enter any relevant premises or vehicle at any reasonable time [s 31(4)]. The reasonable costs and expenses incurred by the Minister or a council in taking action under this section may be recovered as a debt from the person who failed to comply with the requirements of the notice [s 31(5)].

A council that has collected material causing a local nuisance may dispose of it or sell it to offset its costs. This material is not subject to the Unclaimed Goods Act 1987 (SA).

Registration of nuisance abatement notice in relation to land

Councils, or the Minister, may apply to the Registrar-General to register nuisance abatement notices to the land [s 30A]. The registered notice is binding on each owner and occupier of that land, and if an owner or occupier ceases to own or occupy the land they must, as soon as reasonably practicable, notify the council in writing of the name or address of the new owner or occupier [s 30A(6)].

Local Nuisance Exemptions

Councils may grant a local nuisance exemption upon application [s 19]. Examples of activities for which an exemption may be declared are:

An exemption may be unconditional or subject to conditions, including (but not limited to):

All declarations of exemption are published online on the councils’ websites.

The Local Nuisance and Litter Control Act 2016 (SA) has extensive provisions dealing with the disposal of litter. Litter is defined broadly under section 3 but there are 3 main categories: class A hazardous litter, class B hazardous litter and general litter.

Class A hazardous litter is defined as either domestic or commercial waste consisting of asbestos, material containing asbestos, any substance prescribed by the regulation or, a combination of these materials.

Class B hazardous litter is defined when disposed of onto land or into waters as live cigarettes or cigarette butts, used syringes, waste glass, any material prescribed by regulation, or a combination of these materials as listed. Class B hazardous litter is defined when disposed into waters as any disused or decommissioned vehicle, or part of that vehicle, or anything an authorised officer reasonably suspects is being used as an artificial reef.

General litter is defined by the Act as any solid or liquid domestic or commercial waste which includes, but is not limited to,

The Local Nuisance and Litter Control Regulations 2017 (SA) prescribe as general litter, building or construction material when dragged onto a road by a vehicle's tyres following the vehicle's departure from the building or construction site [r 3A].

The Act imposes on business owners, including not-for-profits, a general duty to prevent or minimise litter resulting from their business, including from stormwater management systems [s 21A].

Penalties

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 of if it is discarded, deposited, blows or falls from premises or a vehicle onto land or into water [s 22(2)].

It is an offence if a person fails to comply with a request from an authorised officer to remove their litter [s 24]. There is a maximum penalty of $5,000 (with an expiation fee of $210 for an individual and $500 for a body corporate).

Vehicle Owner Liability

If the littering is undertaken in, at or from a vehicle, or in connection with the use of a vehicle, and the littering results in an offence, then the owner of the vehicle may be guilty of an offence and is liable for penalty and expiation [s 26].

Recovery of urgent litter clean up costs

Where a council takes urgent action to clean up litter from a public place that it considers to be a hazard and the identity of the person who disposed of the litter is not known at the time, the council may, if that person is later identified, serve a written notice on that person requiring payment of the council’s reasonable costs and expenses incurred in that clean up [s 22A(1)].

Those costs may include amounts incurred in taking samples or conducting tests, examinations, monitoring or analysis [s 22A(2)]. The amount must be paid within a period specified in the notice (not less than 28 days) and interest at the prescribed rate will accrue on any unpaid amount [s 22A(3)]. If the amount remains unpaid, the council may recover it as a debt [s 22A(4)].

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 using the forms prescribed by the Local Nuisance and Litter Control Regulations 2017 (SA) [Sch 1]. See also the Public Litter Reporting fact sheet (PDF download, 1,904 KB) published by the Local Government Association.

Litter abatement notices

The Minister for Climate, Environment and Water or a council may issue a written Nuisance Abatement Notice to a person causing a nuisance [s 30].

These notices impose certain requirements upon a person in order to rectify a situation and secure compliance.

The notice may require a person to do certain things, including:

The litter abatement notice may require a person to prepare of plan of action for the purposes of preventing the escape of litter from business premises or keeping a specified area around business premises (including car parks and common areas of shopping centres) free from litter up to 100 metres and in relation to abandoned shopping trolleys, up to 1 kilometre.

It is an offence to fail to comply with such a notice without reasonable excuse. The maximum penalty for a body corporate is $60,000 and for an individual is $30,000. The expiation fee for a body corporate is $1,000 and for an individual is $500 [s 30(9)].

If the requirements of a litter abatement notice are not complied with, the Minister or council may take any action required by the notice [s 31(1)]. An authorised person taking such action may enter any relevant premises or vehicle at any reasonable time [s 31(4)]. The reasonable costs and expenses incurred by the Minister or a council in taking action under this section may be recovered as a debt from the person who failed to comply with the requirements of the notice [s 31(5)].

A council that has collected litter causing a local nuisance may dispose of it or sell it to offset its costs. This material is not subject to the Unclaimed Goods Act 1987 (SA).

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.

The Local Nuisance and Litter Control Act 2016 (SA) allows the Minister or a 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 [s 34(3)].

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 [s 34(12)].

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.

Noise is a local nuisance under the Act if an authorised officer forms the opinion that 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 by people occupying those premises.

Some examples of noise activities 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 [Sch 1, cl 4(a)(i)(A)].

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 9 am on a Sunday and 8pm and 8 am on any other day [Sch 1, cl 4(a)(i)(B)].

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 at any time on a Sunday or public holiday or before 7 am or after 7 pm on any other day [Sch 1, cl 4(a)(i)(C)].

Waste collection, street sweeping and tree maintenance

Waste collection, public street sweeping and tree maintenance noise is a local nuisance if it travels to neighbouring premises before 9 am and after 7 pm on a Sunday or public holiday, or before 7 am and after 7 pm on any other day [Sch 1, cl 4(a)(i)(D) & (E)].

Penalties

The maximum penalty for causing a local nuisance under the Local Nuisance and Litter Control Act 2016 (SA) is $10,000 for an individual (with an expiation fee of $500) and $20,000 for a body corporate (with an expiation fee of $1,000). 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 an individual 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 (with an expiation fee of $210 for an individual and $500 for a body corporate) [s 20].

Noise that is not a local nuisance

Not all noise falls within the definition of a local nuisance under the Local Nuisance and Litter Control Act 2016 (SA). The following are included in the list of things declared under Schedule 1, Clause 5 of the Act 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 have been declared a local nuisance under Schedule 1 of the Local Nuisance and Litter Control Act 2016 (SA):

A bill includes a flyer, brochure, or poster containing promotional material, and anything else declared by the regulations [Local Nuisance and Litter Control Act 2016 (SA) s 23(5)]. A non-compliant moveable sign has been declared under the Local Nuisance and Litter Control Regulations 2017 (SA) reg 10.

It is an offence to post a bill on property, including the land on which a vehicle is located, without the consent of the owner or occupier of the property [s 23(1)]. There is a maximum penalty of $10,000 (with an expiation fee of $315).

It is also an offence to distribute or authorise the distribution of bills for unauthorised posting [s 23(2)]. There is a maximum penalty of $20,000 (for a body corporate) or $10,000 (for an individual) or an expiation fee of $500) [s 23(2)].

However, it will be a defence if it can be proved that the person did not foresee and could not have reasonably have been expected to foresee that the bills would be posted without consent [s 23(3)].

If convicted of a bill posting offence, the court may order an offender to pay the property owner or occupier compensation for loss or damage caused to the property by the commission of the offence as considered just [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. There is a maximum penalty of $5,000 (with an expiation fee of $210 for an individual and $500 for a body corporate) [s 20].

Vehicle Owner Liability

If the bill posting is undertaken in, at or from a vehicle, or in connection with the use of a vehicle, and that activity results in an offence, then the owner of the vehicle may be guilty of an offence and is liable for penalty and expiation [s 26].

Unsightly conditions on premises caused by human activity or a failure to act is a local nuisance under section 17 of the Local Nuisance and Litter Control Act 2016 (SA) as declared by Schedule 1 of the Act.

The declared conditions are listed below and require the opinion of an authorised officer that they have had an adverse effect on the amenity value of the area or caused the premises to be significantly out of conformity with the general appearance of neighbouring premises [Sch 1, cl 3]: