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).
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].
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 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.