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Helpful guidance or simply more nuisance? Examining the Draft Regulations under the Local Nuisance and Litter Control Act 2016 (November 15th, 2016)

The EPA recently released, for comment, two sets of draft regulations to support the operation of the Local Nuisance and Litter Control Act 2016 (“the Act”) being:

  • the Local Nuisance and Litter Control (Amendment of Act, Schedule 1) Regulations 2016 (“the Schedule 1 Amendments”); and
  • the Local Nuisance and Litter Control Regulations 2016 (“the Regulations”).

The closing date for submissions on draft regulations is 2 December 2016.

Below we provide comments on the draft regulations for your consideration and assistance in preparing any submissions that you wish to make.

The Schedule 1 Amendments

Clause 1 – ‘vibration’ is to be a declared agent for the purpose of section 17(1)(a) of the Act. This means that vibration can constitute an actionable nuisance in addition to noise, odour, smoke, fumes, aerosols, dust and animals, whether dead or alive.

We understand the purpose of this proposal is to bring the Act in line with the Environment Protection Act 1993.

The inclusion of vibration, however, raises the question as to whether council officers will have the requisite knowledge, expertise and available resources to measure and assess such complaints.

Clause 2 – the unsightly conditions on premises ‘test’ is provided here.  It is proposed that a nuisance arising from ‘unsightly conditions’ under section 17(1)(c) of the Act will arise where an authorised officer is of the opinion that:

  • any of the following conditions exist on land:
    • the presence of excessive or unconstrained rubbish, waste or vegetation; or
    • the presence of stockpiled, excessive or unconstrained, disused or derelict items or material that a reasonable person would consider to be rubbish or waste in the circumstances; or
    • graffiti (other than graffiti commissioned by a public authority as street art) that has been left on property on the land for more than 7 days; or
    • conditions caused by a building on the land that has been left partially completed or demolished or, in a state of disrepair, dilapidation or damage for more than 1 year provided that the authorised officer is also satisfied that the condition of the building has caused the premises to be significantly out of conformity with the general appearance of buildings on neighboring land;
  • and the conditions have had an adverse effect on the amenity value of the area.

These provisions broaden the concept of an unsightly condition as it currently exists under section 254 of the Local Government Act 1999. However, as is the case under section 254, unsightly conditions will continue to be linked to conditions on land that impact the amenity of an area.

These proposed provisions do not, therefore, overcome the present difficulties faced by councils in seeking to  remedy unsightly conditions in low amenity areas and where an unsightly condition exists on land, but is only visible from immediately adjacent land.

We consider that these provisions could be greatly improved by removing the ‘adverse effect on the amenity value of the area’ test in respect of unsightly conditions arising from the presence of graffiti or excessive waste, rubbish and/or vegetation on land that can be seen only from adjacent land.  These conditions are generally accepted as being unsightly regardless of the amenity value of the area in which they are located.

A number of additional matters listed under clause 3(1) of the Schedule 1 Amendments are proposed to be declared a nuisance for the purposes of section 17(1)(e) of the Act, including:

  • noise in connection with construction activities, rubbish collection, street/tree maintenance machines, bird scaring devices and fixed machines on domestic premises (i.e. such as air-conditioning units) that travels to neighbouring land at the times specified in this clause and which, due to the level, nature or extent of the noise, constitutes an unreasonable interference (in the opinion of an authorised officer) with the enjoyment of the neighbouring premises by the occupiers; and
  • odour, dust, smoke and vibrations that travel from land to neighbouring premises and unreasonably interfere with the enjoyment of those premises by the occupiers.

The list set out in clause 3(1) duplicates matters addressed in the various policies under the EP Act. It is noted that nuisances associated with the matters listed in clause 3(1) that occur outside of the times and/or circumstances specified therein could still give rise to a local nuisance under section 17(1)(a) of the Act (for example, construction noise occurring between 7am and 7pm on a week day).

We consider that the Schedule 1 amendments should include an express clause which provides that where the activities listed above occur within the nominated timeframes, that they do not constitute a local nuisance.

Clause 3(2) of the Schedule 1 Regulations relates to matters that do not constitute a local nuisance. It operates to amend Schedule 1 to the Act so that:

  • noise, odour or waste from animals living in their natural habitat is not a local nuisance unless it arises from animals that have been actively encouraged by feeding to gather in a particular area (for example the feeding of native birds in a residential area in a manner that causes them to gather in that area may still give rise to a local nuisance);
  • noise or other nuisance from any activity carried on in accordance with an authorisation granted under any Act will only be exempt if the authorisation imposes requirements to control, minimise or eliminate any noise or other forms of nuisance and those requirements are complied with.

It will be necessary for councils to ensure that standard conditions imposed on all forms of authorisation (especially development authorisations) include requirements to address potential nuisances – otherwise they will not be captured by this exemption;

  • both unamplified and amplified noise associated with music or voices or both that results from an activity at domestic premises are excluded from constituting a local nuisance.  This is in councils’ interest and puts beyond doubt that noise associated with noisy parties on domestic premises will not be within councils’ remit;
  • the current exemption relating to noise and other nuisances at sporting venues will be limited to noise or other nuisance from sporting activities at sporting venues.  For example, a music concert held at Adelaide Oval would not be captured by this exemption.  The proposed amendment raises questions as to whether noise from a crowd would be considered a ‘sporting activity’. This confusion could be avoided by amending this exemption so it applies to noise or other nuisances from or in connection with sporting activities at sporting venues; and
  • nuisance (other than noise nuisance) arising from public infrastructure works will no longer be exempt from the meaning of a local nuisance.

For example, dust or vibrations associated with roadworks may constitute a local nuisance.

In our view, this type of nuisance should remain exempt, particularly given public infrastructure works are in the public interest.

The Regulations

Clause 4(i)(b) of the Regulations outlines the matters that councils will be required to take into account in performing functions under the Act in relation to a local nuisance.

In our view, consideration should be given to the inclusion of the following in this clause:

  • the measures that could reasonably be taken to eliminate or minimise the local nuisance, whether those measures are in the public interest and any financial, environmental, social or practicable implications associated with them;
  • the number of people affected by the local nuisance; and
  • any other matters considered to be relevant by the council.

Clause 5 outlines the matters to be included in a council’s annual report.

As anticipated, this includes (but is not limited to) the number of complaints of local nuisance or littering received by a council and the number and nature of expiations, prosecutions and other actions taken by a council under the Act.

Councils should consider establishing and maintaining a register of all complaints received to assist in complying with this requirement.

The nature and extent of this requirement means that councils must be ready to enforce breaches of the Act upon its commencement.

Clause 6(1)(a)(ii) of the Regulations specifies the information that must be contained in an application to a council seeking a declaration under section 19 of the Act for an activity to be exempt from constituting a local nuisance.

To streamline the application process and to reduce the administrative burden on councils, it will be beneficial to request the EPA to prepare a standard application form for use by applicants which includes provision of the matters stipulated in clause 6(1)(a)(ii).

Clause 9 of the Act proposes to include moveable signs placed or maintained on a road other than in a manner authorised under section 226 of the Local Government Act 1999 within the definition of a ‘bill’ under the Act.

This provision has been included to assist councils in enforcing non-compliant election signs.

Since it is also possible for the display of a moveable sign (including an election sign) on a road or structure or object on a road to be authorised under section 221 of the LG Act, we consider that the wording of this clause would benefit from being amended to extend to movable signs placed or maintained on a road or on any structure or object on a road other than in a manner authorised under section 226 or 221 of the Local Government Act 1999.

If you require assistance with the preparation of a submission on the draft regulations or otherwise have any questions in relation to them please contact Cimon Burke at cburke@kelledyjones.com.au or on 8113 7105 or Victoria Shute at vshute@kelledyjones.com.au or on 8113 7104.