What is a local nuisance is defined broadly under section 17 of the Local Nuisance and Litter Control Act 2016 (SA) .
Basically a local nuisance is any negative effect on the amenity value (agreeableness) of the area caused by:
- noise – including, but not limited to, noise generated by machinery and construction noise;
- any other cause listed under Schedule 1 of the Local Nuisance and Litter Control Act 2016 (SA) (e.g. vibrations; projection of promotional, obscene or offensive images onto property without the consent of the occupier or owner; use of an audible bird scaring device that does not comply with the Audible Bird Scaring Devices Environmental Noise Guidelines 2007).
The regulations also specify the circumstances in which noise becomes a local nuisance:
- for noise generated by fixed machinery – noise that has travelled from domestic premises to a habitable room or an outdoor courtyard or entertainment area on neighbouring premises;
- in the case of other noise generated on domestic premises – noise that has traveled from the domestic premises to neighbouring premises between the hours of 8 pm and midnight on any day; or midnight and 9 am on Sunday; or midnight and 8 am on any other day;
- in the case of construction noise – noise that has travelled from the construction location to neighbouring premises on any Sunday or public holiday, or after 7 pm or before 7 am on any other day;
- in the case of waste collection noise – before 9 am or after 7 pm on any Sunday or public holiday, or after 7 pm and before 7 am on any other day;
- in the case of noise from a street or tree maintenance machine – before 9 am or after 7 pm on any Sunday or public holiday, or after 7 pm or before 7 am on any other day.
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]:
- noise or nuisance from firework displays, sporting venues and community events;
- noise from public infrastructure works;
- activity or noise from licensed premises [complaints for these may be lodged with the Liquor Licensing Commissioner under section 106 of the Liquor Licensing Act 1997 (SA)];
- noise primarily consisting of music or voices (or both) from an activity at domestic premises;
- noise from activities carried on in the normal course of activities by a school, kindergarten, child care centre or place of worship;
- noise created by a barking dog [issues regarding barking dogs are dealt with under section 45A(5) of the Dog and Cat Management Act 1995 (SA)];
- noise, odour or waste from animals living in their natural habitat (other than such animals that have been actively encouraged, by feeding, to gather in a particular area);
- aircraft and railway noise;
- noise caused by emergency vehicle sirens.
Premises with insanitary or unsightly conditions are also included under the definition of local nuisance.
Exactly what constitutes unsightly conditions is detailed in Schedule 1 of the Local Nuisance and Litter Control Regulations 2017 (SA) to include:
- excessive or uncontrolled rubbish or vegetation;
- stockpiled or excessive discarded or derelict items or material that a reasonable person would consider to be rubbish or waste;
- graffiti left on a property – in the case offensive graffiti, if left for more than 7 days; in any other case, if left for more than 28 days;
- a building left partially demolished or in a state of disrepair or dilapidation.
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):
- open items;
- inspect any substance or item found;
- take and remove samples of any substance or item;
- require a person to produce plans, specifications, documents, etc;
- examine, copy and take extracts from plans, specifications, documents, etc;
- take photographs, films or video recordings;
- take measurements, make notes and carry out tests;
- remove, seize or retain any substance or item that has or may have been used in an offence under the Act.
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].
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.