Crouching tiger, hidden dragon? Local nuisance and litter control bill

Posted on August 14, 2015

Consultation has commenced on the new Local Nuisance and Litter Control Bill. The Bill aims to provide clearer parameters for Local Government when dealing with environmental local nuisance and littering.

On its face the Bill seems to be a practical consolidation of existing nuisance and littering laws which are currently scattered through many pieces of legislation including the Local Government Act, the Environment Protection Act, the South Australian Public Health Act and the Development Act. However, on closer reading it is clear that the Bill has the potential to place additional barriers on development, increased scrutiny in the assessment process, lead to additional development approval conditions (which extend into the operational life of a development), create additional avenues of objection for individuals through civil remedies and create more obligations to ensure that records are maintained to be able to defend any notice issued for a breach of the Act.

The remarks in the explanatory report to the Bill state that the aim of the Bill is to “…reduce the prevalence of nuisance complaints through a greater understanding of nuisance, better consideration of nuisance by Councils in development assessment and improved methods of resolution…” because “many nuisance issues emanate from planning decisions that give no consideration for nuisance once a dwelling is inhabited, such as poorly located air conditioning units and pool pumps, and the location of sleeping areas in mixed use zones”.

The reach of the Bill is significant. The offences of causing local nuisance or littering can relate to actual or proposed activities and many of the evidentiary requirements are subjective. This, together with the substantial powers of enforcement given to “authorised officers” means that the current drafting of the Bill is sufficiently wide to interfere with the development approval and construction process.

The Bill

The aim of the Bill is to provide clarification around a Council’s roles and responsibilities for local nuisance (excluding activities of environmental significance as defined under the Environment Protection Act) and littering. The aims include:

protecting individuals and communities from local nuisance;
preventing littering;
improving the amenity value of local areas; and
promoting the creation and maintenance of a clean and healthy environment.

While many of these aims have been dealt with under existing legislation and by-laws, the definition of ‘local nuisance’ expands what is currently captured by that term and will allow a Council, as the principal authority, through its authorised officers to:

take action to detect, prevent and manage local nuisance and littering within its area;
cooperate with any other person or body involved in the administration of the Act;
assess activities and development or proposed activities or development within its area, in order to determine and respond to their potential for causing local nuisance and littering;
provide or support the provision of education information within its area to help detect, prevent and manage local nuisance and littering; and
such other functions as are assigned by the Council by the Act.

What is local nuisance?

The Bill prescribes ‘local nuisance’ as including:

any adverse effect on an amenity value[1] of an area caused by light, noise, odour, heat, smoke, fumes, aerosols, dust, animals (dead or alive), other agent or class of agent prescribed, that either does or is likely to unreasonably interfere with the enjoyment of the area;
insanitary conditions on premises (land, building (movable or structure) or place) that unreasonably interfere with or are likely to unreasonable interfere with the enjoyment of premises occupied by persons in the vicinity;
unsightly conditions on premises prescribed by regulation, caused by human activity or failure to act; and
contravention or failure to comply with a provision of an environment protection policy or a provision of any other Act.

Allegations that a ‘local nuisance’ has been caused can proceed on evidence from an authorised officer who “formed the opinion based on his or her own senses”. Such subjective opinion constitutes proof, in the absence of proof to the contrary.

What is littering?

The Bill introduces three tiers of littering replacing the existing general offence under the Local Government Act. The type and quantity of litter will determine the category of the offence and the penalty. The categories are:

Class A hazardous litter (e.g. listed waste);
Class B hazardous litter (e.g. live cigarettes, cigarette butts or waste glass); and
Class C general litter (e.g. demolition material, building or construction material, vehicles or vehicle parts).

The explanatory report notes that recognition of environment protection policies under the Environment Protection Act can mean certain activities not only breach those policies but also constitute littering under the Act. For example, stormwater discharge to water under the Environment Protection (Water Quality) Policy 2003.

Significantly, changes to the evidentiary requirement of identifying the person using the vehicle involved in littering or illegal dumping means that the registered owner of the vehicle involved will now be responsible for the offence and identification of the driver will no longer be required. Litter blown or falling from vehicles and uncovered or unsecured waste and soil being transported will also be caught by the littering provisions and liability will rest with the registered owner of the vehicle. The impact of these changes is broadened by the opportunity for “citizen’s notifications”. This means a member of the public can make a report to the Minister or the Council where they have witnessed littering.

These changes will make it important for organisations to keep records of who has access to and who is driving its vehicles at any point in time. The registered owner of a vehicle will only be able to avoid liability for an offence under the littering provisions if they can provide evidence that they were not driving the vehicle and so are not responsible for the activity.

To strengthen the illegal dumping provisions, there will be surveillance of dumping hotspots.

Civil Remedies and Enforcement

In addition to notices, which can be issued by authorised officers, and enforcement action and penalties, there are significant rights granted to individuals under the civil remedies provisions of the Act. These rights have the potential to place another layer of objection where, as the explanatory report notes, “a Council or administering body is unable to determine a contravention through its own investigations and is unable to progress a complaint to the satisfaction of the complainant”. This is a concerning aspect of the Bill and one which warrants careful scrutiny.

Section 36 of the Bill allows an application to be made to the Environment, Resources and Development Court at any time within three years after the date of the alleged contravention[2], by the Minister, a Council, any person whose interests are affected by the subject matter of an application or any other person with permission of the Court for orders:

restraining a person from engaging or proposing to engage in conduct in contravention of the Act;
requiring a person to take action required by the Act;
to make good damage or prevent or mitigate further damage to property caused by a contravention of the Act;
for payment of the reasonable costs and expenses incurred by the Minister or council in taking action to prevent or mitigate damage caused by a contravention of the Act;
for payment of compensation for injury, loss or damage or payment of the reasonable costs and expenses of taking action by a person who has suffered injury, loss or damage to property as a result of contravention of the Act;
for payment of the whole or part of the costs and expenses incurred in action taken by the Minister or Council in pursuance of an order under a nuisance or litter abatement notice; or
for exemplary damages, against a person who has contravened the Act (where the Court considers it appropriate).

The aim of the civil remedy provisions is to “…provide an alternative route for complaint resolution that may be exercised separately from the Council or administering body”.

While the Bill affords protections if you have undertaken adequate due diligence, for abuse of process, compensation for loss or damage where the Court finds there is no contravention and penalties for making a false or misleading statement, the broad scope of the Bill permits applications to be made by individuals affected by the most common causes of complaints in any development namely light, noise, odour and dust. The right to make a complaint extends to a potential or actual impact and arguably, even where a building is completed in accordance with the approved plans (as there is no exemption in such circumstances unless granted by Council).

In addition to the civil remedies, a person can be issued with a ‘Nuisance Abatement Notice’ for causing local nuisance which attracts penalties ranging from $60,000 to $20,000 for a body corporate and $30,000 to $10,000 for an individual or a ‘Litter Abatement Notice’ for littering which attracts both monetary penalties ranging from $250,000 to $60,000 for a body corporate and $120,000 to $210 for an individual (depending on the class of litter) and, for class A or B offences, imprisonment.

What does the Bill mean for you?

The objectives of the Bill are mostly sensible and a necessary consolidation of existing legislative regimes. However, the expansion of ‘local nuisance’ and the linking of those considerations to the development approval process even, post development, mean that the potential for tighter conditions on development approvals and construction hold ups are a real possibility.

Submissions in response to the Bill are open until 31 August 2015. If you need assistance with preparing a submission, please contact a member of our team.

[1] Any quality or condition of an area that conduces to its enjoyment

[2] or, if authorised by the Attorney-General, any later time.

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