In May 2016 the Local Nuisance and Litter Control Act 2016 (the new Act) passed both houses of State Parliament setting many South Australian businesses on a collision course with Local Government (Council) officers.

For decades the EPA and Council have squabbled over who is responsible for policing noise and other complaints arising from bad planning decisions and the progressive encroachment of residential areas into what was once industrial heartland.

To date, complaints regarding noise and other emissions from light industry have been dealt with under the provisions of the Development Act 1993 and associated plans (or “zoning”), and the Environment Protection Act 1993 and associated policies. One such policy, the Environment Protection (Noise) Policy 2007, specifies permissible levels of noise in different areas (zones) during different times. When dealing with noise complaints, individuals and businesses could refer to the policy to check their compliance against the levels set out in it. If the noise levels were within the policy limits, Section 84 of the Environment Protection Act created a defence to any allegation of causing an environment nuisance. This is not the case with the new legislation.

Section 18 of the Local Nuisance and Litter Control Act, creates an offence of causing a local (environmental) nuisance. The new Act defines such a Nuisance to include noise, odour, smoke, fumes and aerosols, animals and other emissions prescribed in regulations. A company may be fined as much as $60,000 and an individual $30,000 if determined to have recklessly and intentionally causing a local nuisance. Where the nuisance was not caused intentionally or recklessly, a company may still be fined as much as $20,000 and an individual $10,000.

The new Act does provide defences where the “person took all reasonable precautions and exercised all due diligence to prevent the commission of the offence”. Here lies the difficulty for everyone involved. Unlike the Environment Protection Act which establishes a defence if a person can prove they have operated within the policy limits, the defence of exercising “all due diligence” has no defined limits against which emissions can be measured. This creates fertile ground for disputes between businesses operating with what they believe to be all ‘due diligence’ and a neighbour, perhaps a resident of a newly built high density housing development, who thinks more can be done.

The new Act assigns the role of policing such complaints to local government, who will be charged with the authority to make an assessment as to whether all “due diligence” has been exercised in an effort to reduce the nuisance caused. Council’s ability to avoid getting involved in such disputes has come to an end. Whilst it is clear why the South Australian government wants to handball to councils the policing of complaints arising from years of poor planning decisions, business operating close to residential areas should be particularly concerned about what the future holds under the new laws.

Tim Griffin of LAWYERS SA is experienced dealing with nuisance complaints having acted for the Environment Protection Authority (EPA) and private clients in respect of environmental issues. Give Tim a call today on (08) 8237 0547 to discuss how LAWYERS SA can help you.

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