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 Environment Protection Authority, see Pollution and Waste.
The Environment Protection (Air Quality) Policy 2016 prohibits:
- the burning of prohibited substances (for example, timber preservation chemicals, plastics and tyre waste)
- the burning of matter in the open on any land within a council area (other than, in metropolitan council areas, charcoal, dry wood or plant material for preparing food and beverages or charcoal for domestic heating)
The burning of matter in a domestic incinerator is considered to be "in the open" under the policy.
Burning off to reduce bush fire hazards is permitted in metropolitan council areas so long as the Fire and Emergency Services Act 2005 (SA) allows it and it is carried out in accordance with a burning permit issued under the policy.
Different rules apply in non-metropolitan council areas (other than townships).
The owner or occupier or premises at which a solid fuel heater (slow combustion heater) is used must ensure that the smoke emitted is not excessive. Smoke emission may be considered excessive if a visible plume of smoke extends into the air from the flue or chimney of the heater for a continuous period of10 minutes, including a period of 30 seconds when it extends 10 metres above the flue or chimney. If the smoke creates a risk of harm to public health, a council officer can issue a notice prohibiting the use of the heater or allowing its use under certain conditions [see South Australian Public Health Act 2011 (SA) ss 56 and 92].
Offensive smoke, smells or polluted air may constitute a nuisance and the neighbour can be sued. Even where it is not legally a nuisance, if it occurs as a result of a breach of the Act, or a breach of some condition under which planning approval has been given, it might still be possible to take legal action.
Some air pollution may be caused in a manner that is provocative and could give rise to an Intervention Order [Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 6, 8].
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.