EPA Recommendations for Local Nuisance and Litter Reforms

23 February 2021

The EPA recently released its consultation report (the Report) regarding the review of the Local Nuisance and Litter Control Act 2016 (the Act). A copy of the Report is available here https://www.epa.sa.gov.au/files/14821_lnlc_act_consultation_2019.pdf .

The Report sets out the public consultation outcomes from the 2019 EPA discussion paper that commenced the review process. It also includes EPA recommendations for changes to the Act arising from the feedback. A number of the recommended changes are addressed below.

  • To amend the Act to clarify that it applies to licensed venues (including for licensed outdoor events), but only in relation to nuisances not associated with the service of alcohol.

This would clarify that fixed machine noise generated on a building on licensed premises is within the Act and remove current confusion about this. Nuisances arising in connection with the service of alcohol, including from music, patron noise and from patron behaviour, will sensibly continue to remain exempt under the Act but within the remit of SAPOL.

  • No change is recommended to clarify that a ‘natural habitat’ does not include built form.

This is despite competing interpretations in relation to the ‘natural habitat’ exemption under clause 5 of Schedule 1 to the Act. There is merit in the definition being clarified to avoid any doubt, to ensure that decision-making in relation to the exemption is consistent and mitigates the risk of challenges (with associated resource implications) from competing interpretations.

  • To add ‘light’ as an agent that can cause a local nuisance under section 17(1)(a) of the Act.

Objectively, there is a lack of compelling reasons in the Report to support this recommendation. Particularly when the light pollution concerns referred to in the Report (i.e. environmental harm and harm to human health) are matters that can, already, be addressed under the Environment Protection Act 1993 or the South Australian Public Health Act 2011 respectively. The resource implications for councils from this inclusion are substantial (as raised by councils in submissions responding to the discussion paper). Its inclusion in the Act is difficult to justify.

  • To include noise from refrigerated vehicles as a local nuisance under the Act.

This change would, again, extend the operation of the Act to address complaints that, in practice, would be exceptionally difficult to resolve given the purpose that refrigeration vehicles serve (the difficulty being that if a refrigerated vehicle is required, there are unlikely to be feasible transport alternatives).

  • To develop guidance for objective measurement to support subjective determinations.

In our opinion this recommendation falls short. It is a missed opportunity to recommend clear amendments to the evidentiary presumption under section 50(1) of the Act, which relates to subjective assessments by an authorised officer. At present, the operation of the evidentiary presumption is limited to an officer personally experiencing (with his/her own senses) the relevant agent. This presumption will be of greater use and benefit if it is amended to apply to any assessment of evidence relating to an agent, undertaken by an authorised officer, regardless of whether or not the officer has personally experienced the agent (similar to the evidentiary presumption under the SAPH Act where an authorised officer’s assesses that something is a risk to public health). The limitations arising from the current drafting of section 50(1) result in it not assisting as widely as it could.

  • Include an exemption in Schedule 1 to the Act so that that dust from unsealed public roads is not a local nuisance under the Act.

This is a logical change and, no doubt, would be welcomed by councils.

  • Revise the litter provisions in accordance with suggestions received during public consultation as part of any project to amend the Act.

The suggestions include revisiting expiation fees and penalty amounts and clarifying, the interaction between the Act and sections 236 and 237 of the Local Government Act 1999 as they relate to litter that comprises vehicles. Since the definition of ‘vehicle’ under the Act includes a vessel (which is not the case under the Local Government Act 1999) questions have arisen as to whether a seaworthy vessel left moored on waters in an unauthorised manner could reasonably be dealt with using the litter provisions under the Act. In our opinion the definition of ‘general litter’ is not reasonably construed as extending to such. Expanding the definition to capture abandoned vessels would, therefore, enable councils to have a more effective tool to manage vessels left moored to council land.

Further, we consider that councils would benefit from the inclusion of a provision that affords protection from liability for action taken under the Act to dispose of litter and other rubbish (including, for example, in connection with enforcement action to address an unsightly condition on premises).

  • Add ‘trolleys’ to the definition of ‘general litter’ under the Act.

This would provide a clear legislative path to manage what has been a vexed issue for many councils for many years. For the Act to, effectively, address abandoned trolleys we recommend that changes go further than, simply, amending the definition of ‘general litter’. In particular, so:

    • businesses are required to include identification numbers on trolleys to easily identify the owner; and
    • liability for abandoned trolleys is extended to the business owner of the trolley with a defence available if the business takes steps to remove the trolley within a specified timeframe of being notified of its whereabouts.
    • No change to the definition of ‘unsightly condition’ under clause 3 of Schedule 1 to the Act.

This is a missed opportunity to amend the definition to include single unsightly items that have been left on land for extended periods such as port-a-loos, fencing or machinery. In our experience councils have been unable to, effectively, address complaints regarding the unsightly nature of such items (and complainants find it difficult to understand why). Often, such items are not present on land in addition to other disused items and, of themselves, do not, reasonably, come within the existing definition of an unsightly condition.

The Report is to be presented to the Minister for Environment and Water for consideration. It is unclear if there is any political appetite to implement the legislative changes that it recommends.  According to the Report, if the Minister wishes to progress any of the recommendations, the EPA will conduct further consultation on the details of proposed amendments to the Act. In the meantime, there is currently opportunity for individual councils to provide feedback direct to the Minster in respect of the Report and/or to lobby for desired changes.

If you have any questions, please contact:

Cimon Burke on 08 8113 7105 or cburke@kelledyjones.com.au.