Nuisance and Litter Reform Proposals - Trash or Treasure? You be the Judge.

12 July 2019

The Local Nuisance and Litter Control Act 2016 (“the Act”) has been in operation for two years and, as a consequence, the Environment Protection Authority (“EPA”) has initiated the much-anticipated review of the Act. The purpose of the review is to consider the functionality and effectiveness of the Act in addressing nuisance complaints, littering and illegal dumping issues. As part of the review, the EPA is seeking comments from stakeholders by Friday, 4 October 2019. This is a good opportunity for councils to provide feedback on the Act and to propose amendments to it.

To assist in this process, the EPA has released a discussion paper (available at https://www.epa.sa.gov.au/our_work/have_your_say) which invites comment on a number of proposed reforms.

We examine some of these reforms below.

Licensed Venues

The EPA has suggested the Act could be amended in respect of licensed venues such that:

1.      nuisances associated with ‘bricks and mortar’ venues that are not linked to the service of alcohol (i.e. fixed machinery noise); and

2.     nuisances arising from licensed outdoor events, including patron behaviour are managed under the Act rather than the Liquor Licensing Act 1997.

This reform would expand the responsibilities of councils so that they are required to deal with licensed premises, raising obvious resource considerations. Further, the proposal at 2 above is of concern as many local government officers are not equipped to effectively respond to complaints associated with outdoor licensed events, many of which raise legitimate safety considerations. Such matters are, in our view, more appropriate to remain within the remit of SA Police and the Liquor Licensing division of Consumer Business Services.

Natural Habitats for Animals

Currently, noise, odour or waste from animals living in their natural habitat is not considered to be a local nuisance. There has been some confusion regarding what constitutes a ‘natural habitat’ and whether this includes, for example, nesting in or on buildings. In our opinion, the present drafting of the Act is open to competing interpretations and the inclusion of a definition to clarify the intended position (i.e. that natural habitats do not include buildings and structures) would remove doubt.

Councils may also wish to consider whether a nuisance caused by a person actively encouraging animals to a particular area should continue to be restricted to encouragement by feeding only or, whether other means of encouragement, such as providing or failing to deal with nesting locations, planting vegetation to attract animals, etc. should also be captured within this exception.

Light as a Local Nuisance

The Discussion Paper proposes the possibility of expanding the scope of local nuisance to include light. Doing so could lead to street lighting and sporting venue lighting being considered a local nuisance. The proposal raises concerns regarding the resource demands that investigating such complaints would place on already stretched authorised officers – particularly given that light complaints occur at night. There does not, in our opinion, appear to be an overriding benefit to the community that would outweigh the resource commitment required by councils if the meaning of local nuisance was expanded to include light. We consider that light complaints should remain outside the remit of the Act and that light nuisances should remain a civil matter only.

Local Nuisance Exemption for Dust from Unsealed Roads

It is not always feasible for councils, particularly regional councils, to seal every road within their area so as to prevent dust causing a nuisance. As such, the proposal to include dust from unsealed public roads within the prescribed local nuisance exemptions in Schedule 1 of the Act would protect councils from responsibility for dust complaints in respect of these roads. Councils may, therefore, wish to confirm their support for this proposal to the EPA. In doing so, councils may also wish to consider whether any such exemption should be limited to public roads only or whether it should extend to private roads as well.

Trolleys

Abandoned trolleys have long been a difficult issue for councils. There is, arguably, some scope to deal with the matter under section 22(2)(b) of the Act which extends liability for littering offences to any person who caused or allowed litter to be disposed of onto land. Where the owner or person responsible for an abandoned trolley has been notified of the location of an abandoned trolley and does not collect it within a reasonable timeframe, the owner may be deemed to have “allowed the litter” for the purposes subsection 22(2)(b) of the Act and, therefore, may be liable for enforcement action in respect of a littering offence in addition to the person who discarded the trolley.

Notwithstanding, including provisions within the Act to specifically address abandoned trolleys would remove any doubt as to the liability of supermarket owners for them. We consider this option to be worthwhile given that abandoned trolleys are a widespread problem warranting a consistent approach across the State. To maximise their effectiveness, provisions to address abandoned shopping trolleys should extend liability to the owners of the trolleys and require trolleys to be identified in a prescribed manner (e.g. with owner details). An express power to enable councils to recover costs from owners for removing trolleys from public spaces should also be considered.

Cost Recovery

The EPA is seeking feedback regarding cost recovery provisions under the Act and how they may be improved. One option that should be considered is amending section 48 to enable cost recovery where urgent action is taken by a council to address a contravention of the Act. Such an amendment would allow councils to progress an immediate clean-up of hazardous litter with the knowledge that the associated costs may be recovered from the relevant offender should he/she be identified at a later date.

An automatic charging provision for outstanding costs owed under the Act (i.e. as opposed to requiring a charge to be registered in respect of such amounts) would also assist in ensuring security for councils for outstanding amounts and alleviate the administrative and cost burden associated with registering a charge.

Registering Abatement Notices on Titles to Land

Section 30(2)(e) of the Act currently allows a council to issue an abatement notice to a person requiring that they discontinue, or not commence, a specified activity indefinitely. This may include action in respect of fixtures on land. Given that land may change ownership from time to time, where ongoing action is required in respect of land under an abatement notice, a power to register the notice against the land such that its requirements bind the owner rather than solely the recipient of the notice has merit and would avoid the need for a fresh notice to be issued where there is a change in ownership of land.

Extending Exemption Time-Frames

Currently, section 19(6) of the Act restricts exemptions from section 18 to a period of three months only. In practical terms this means that many large-scale construction sites must endure the onerous application process numerous times whilst construction takes place. Furthermore, this process requires council officers to review the site nuisance management plan every three months when an exemption application is lodged. A simpler process to allow for extending exemptions without imposing further administrative burden on councils is worth consideration. One option to achieve such an improvement is to allow the council assessing an application for exemption to determine the appropriate timeframe for any exemption granted on a case-by-case basis.

Jurisdiction

The EPA is seeking comment regarding which court is best placed to deal with local nuisance, litter and illegal dumping. Currently, all litigation under the Act falls within the jurisdiction of the Environment, Resources and Development (ERD) Court, which is located in Adelaide. If the jurisdiction was changed to the Magistrates Court this may be more convenient to regional councils that wish to pursue prosecutions. Notwithstanding, we consider it preferable for the ERD Court to retain jurisdiction over the Act including because:

• specialist Judges and Commissioners who are familiar with dealing with enforcement matters pertaining to environmental and amenity issues preside over matters; and
• decisions made by the ERD Court are publicly reported which contributes to greater consistency in decision-making and better guidance for council

There has also been a suggestion that appeals under the Act should be heard by SACAT instead of the ERD Court. Given both the ERD Court and SACAT are only located in Adelaide, this proposal would not impact upon travel considerations for regional councils. Whilst SACAT is considered more accessible for members of the public due to having less formality than other courts, including the ERD Court, the drawback could be the loss of specialised knowledge from the relevant judicial officer in deciding on litter and nuisance abatement notice appeals. Further, in our experience, reviews before SACAT are not necessarily cheaper than appeals before the ERD Court. Costs in either jurisdiction will always depend on the nature of the matter and issues in dispute.

Other Matters

Civil Orders

An additional consideration is in respect of section 33(15) of the Act which allows councils to utilise the default action and cost recovery proceedings in section 31 of the Act in respect of Orders made by the ERD Court. Unfortunately, this provision restricts the ability for councils to undertake works required by Court Orders to works required to take specified action to make good damage to property or to prevent or mitigate further damage. A recommended reform would be to expand section 33(15) so that councils can undertake default action and recover their costs under section 31 for all manner of Orders imposed by the ERD Court.

Unsightly Conditions

There is opportunity to revisit the meaning of what constitutes an unsightly condition under the Act. There may be merit in expanding the definition to capture single structures or large items on residential properties that have been left on the land for significant periods and cause it to be out of conformity with neighbouring land. Examples include: disused machinery, storage of port-a-loos and/or substandard fencing which items, of themselves are not currently captured within the definition under the Act.

Further, where a council undertakes a cleanup itself following non-compliance with an abatement notice consideration could be given to:

• including protections from liability in the Act in respect of items determined by councils to be rubbish and removed from land in accordance with a requirement of a notice; and/or
• providing guidance regarding how items removed from land can be disposed of by councils, including expressly allowing for sale of scrap metal with proceeds offsetting costs associated with default action.

If you have any questions regarding the Act and proposals for reform please contact:

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

Victoria Shute on (08) 8113 7104 or vshute@kelledyjones.com.au