South Australia s Environment Protection Authority Managing Nuisance Issues

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1 South Australia s Environment Protection Authority Managing Nuisance Issues Stephen Potter Team Leader, Compliance Greg Marr Senior Environment Protection Officer Monica Bosco Coordinator Local Government Services

2 What will be covered Legislation nuisance management Complaints management Noise Subjective Assessment Wood heater smoke Example of complaint that EPA was involved in Odour 2 examples of complaints that EPA was involved in

3 What is nuisance? Local Nuisance and Litter Control Act 2016 Litter provisions effective from 1 February 2017 Nuisance Provisions effective from 1 July s7 (1) Subject to this Act, a council is the principal authority for dealing with local nuisance and littering in its area.

4 What is nuisance? Local Nuisance and Litter Control Act 2016 S 17 (1) For the purposes of this Act, local nuisance is (a) any adverse effect on an amenity value of an area that (i) is caused by (A) noise, odour, smoke, fumes, aerosols or dust; or (B) animals, whether dead or alive; or (C) any other agent or class of agent declared by Schedule 1; and (ii) unreasonably interferes with or is likely to interfere unreasonably with the enjoyment of the area by persons occupying a place within, or lawfully resorting to, the area; or

5 What is nuisance? (b) insanitary conditions on premises that unreasonably interfere with or are likely to interfere unreasonably with the enjoyment of premises occupied by persons in the vicinity; or (c) unsightly conditions, of a kind declared by Schedule 1, on premises caused by human activity or a failure to act; or (d) a contravention of, or failure to comply with a provision of an environment protection policy, or of any other Act or law, declared by Schedule 1; or (e) anything declared by Schedule 1 to constitute local nuisance, but does not include anything declared by Schedule 1 not to constitute local nuisance.

6 What is nuisance? Part of your assessment is establishing the following amenity value of an area includes any quality or condition of the area that conduces to its enjoyment premises means (a) any land, building (including residential premises) or place (including a public place, or a movable building or structure); or (b) a part of premises; enjoyment to have and use with satisfaction

7 What is nuisance? unreasonable interference annoying v unreasonable Most activity results in an impact of some description that the impact exists and perhaps constitutes an interference is not be enough to constitute local nuisance it must unreasonably interfere. Would a reasonable person tolerate the nuisance given the level, nature and extent?

8 What is nuisance - Schedule 1 Schedule 1 Gives additional meaning to Local Nuisance for the purpose of Section 17 Part 1 Defines terms used in the Schedule, this is in addition to section 17 Part 2 Specifies things that are local nuisance Part 3 Specifies thing that are not local nuisance

9 Complaints Management The primary goal is to achieve compliance in the most efficient, resourceful and effective way PROCESS!!! MANAGE CLIENT EXPECTATIONS COMMUNICATION REGULATION CLOSE COMPLAINT

10 Complaints Management Complaint received - validate the complaint is councils responsibility - validate there is a potential non-compliance (nuisance) - record complaint in a system Complaint management responsibilities Council professional, impartial, efficient - communication - transparent - courtesy and respect - regulator

11 Complaints Management Complaint management responsibilities Complainant - Identify themselves - Identify issues - provide information - co-operate - courtesy and respect - incident diary If the complainant is not willing to meet their responsibilities set limits or decline to take any action on the complaint.

12 Complaints Management EPA recommends using a staged approach to managing nuisance complaints - Prioritisation of the complaint - Stage 1 Validation of complaint - Stage 2 Investigation - Stage 3 Regulatory Action or closing of complaint

13 Complaints Management Prioritisation Ensures appropriate allocation of resources Allocate the complaint a priority ranking - human health impacts - environmental impacts - broad temporal or spatial impacts - number of people affected

14 Complaints Management Stage 1 Validation of the complaint Complainant - explain the process of how it will be managed - provide information - incident diary Alleged offender - advise a complaint has been received - advise of their obligations - explain the process of how it will be managed - consequences of non compliance THE BEST OUTCOME IS FOR THEM TO RESOLVE THEIR ISSUE THEMSELVES

15 Complaints Management Incident Diary This should be provided to the complainant as soon as possible. The incident diary serves a number of purposes: Description of the problem Frequency Patterns When to target inspections If meteorological conditions are relevant

16 Complaints Management Stage 2 Investigation If issue not resolved in Stage 1, proceed to stage 2. Review incident diary and information supplied Validate the complaint by inspection This may require multiple inspections at the time the nuisance is occurring Develop a regulatory plan of action

17 Complaints Management Stage 3 Regulatory action If non- compliance confirmed in Stage 2 The purpose of regulatory action is to secure compliance with the Act Regulatory tools Warning letter Expiation Abatement Notice Prosecution Monitor the progress and establish a date by which they are to comply.

18 Complaints Management Stage 4 Compliance achieved or environmental nuisance not validated Advise the complainant and the offender that: - no non-compliance has been found - the non compliance has been resolved to the satisfaction of the council CLOSE THE COMPLAINT

19 Assessment of Nuisance Regulation 7 For the purposes of 21 (d) of the Act, if, in determining the presence of local nuisance, Section 17 (1) (including a provision referred to by that Section) requires an AO to form an opinion about a matter, the officer may form the opinion based on the officer s own senses.

20 Section 50 Evidentiary provisions (1)In proceedings under this Act, where it is alleged that a person caused Local Nuisance within the meaning of section 17(1)(a) or (b), evidence collected by an AO that he/she formed the opinion based on his or her own senses that (a) the agent alleged to have caused the local nuisance (when discharged or emitted from a place occupied or a vehicle owned by the person) travelled to a place occupied by another person; and (b) the level, nature or extent of the agent within the place occupied by the other person was such as to constitute an unreasonable interference with a person s enjoyment of the place, constitutes proof, in the absence of proof to the contrary, of those matters.

21 The Subjective Assessment of Nuisance For an activity to be deemed to be causing a local nuisance an authorised officer has to form an opinion that the emitted pollutant unreasonably interferes with a person s enjoyment of a place. The position that an officer selects to assess the nuisance is critical. It should only include places where people would be expected to frequent. Many activities results in a form of external emission. The fact that an emission is observable and may be annoying does not mean that it is a nuisance. A nuisance could be described as something that is both uncommon within the community and annoying at an extreme level.

22 The Subjective Assessment of Nuisance A legal nuisance should not include common activities that may interfere with a neighbours enjoyment of a place such as mowing a lawn, construction, the use of a wood-heater, normal business activities if they occur at normal times, for normal durations and at a normal frequency of occurrence. The following considerations provide some guidance on the factors that may be relevant in subjectively deciding whether an activity is causing a nuisance; Is the emission significant in an absolute sense, or relative to background conditions? Dust

23 The Subjective Assessment of Nuisance Does the emission have any special characteristics that are significantly different to those that might otherwise be expected in the area? Noise in particular can contain characteristics that aggravate its level of annoyance. Odour can be assessed by both strength and character Dust may have characteristics that should be taken into account when assessing ie dust from a contaminated site. Is the time of the day a significant factor in assessing the emission? Examples, 4am, 7am, 4pm, 7pm, 10pm

24 The Subjective Assessment of Nuisance Is the duration of the activity a significant factor in assessing the emission? All day, part day or intermittent? Is the emission adversely affecting nearby activities? Is the emission affecting other people? How many people are affected? How easy would it be to control emissions from the activity? This is where an officer would look at the activity and determine if reasonable measures are being taken to control any external impact of the activity.

25 The Subjective Assessment of Nuisance Is the emission common when other people are carrying out a similar activity? Is the activity affecting people inside a building? Does the activity interfere with other people s normal activities? Not all of the factors need to be present for an opinion to be formed that the activity is causing an unreasonable interference. Ultimately, the level, nature and/or extent of the relevant emission are important criteria, and reasonable judgment must be used to decide what is acceptable in a given situation.

26 Nuisance is the law of common sense A nuisance only occurs if a person is affected Some activities that are recognized as being reasonably, but still having a significant impact on people are allowed but only within certain hours. These times have been selected to balance the interests of all parties Construction 7am to 7pm Monday to Saturday (if people will be affected by noise) Domestic Power Tools (occasional use) 8am-8pm (9am-8pm on Sundays) These times do not suit everyone. The rules cannot please everyone (ie shift workers).

27 Some guidance You may wish to adopt, or consider the EPA s guide of defining daytime as 7am to 10pm and night-time as 10pm on any day until 7am on the next day. Any activity that should only occur during day-time can occur at any time during the hours defined as day-time. This allows a balance between business and residential interests. An example pickups (including waste) and deliveries. If no-one is bothered there should be no restriction. But where a complaint arises and nuisance is likely then the person undertaking the activity should be advised to restrict activities to day-time.

28 The legal standard If you have conducted an investigation to the point you are satisfied that there is no legal breach then options are; A person undertaking an activity could be asked to voluntarily take some steps to satisfy a complaint, or A person who is affected by an activity that is not a nuisance must make their own arrangements to achieve a level of comfort. This may include; People with asthma or other conditions who take issue with the normal operation of a wood heater. People who are sensitized to anything. Shift workers who complain about normal daytime activities People with unrealistic expectations People do not like being told this. Even helpful suggestions may be met with aggression. Try to be sensitive.

29 Wood smoke example Complaint received. Initial letters sent to source and complainant. Diary received indicating started around 5 6pm daily. Carried out 1 site visit before this site visit. Level of smoke was constant for over 1 hour.

30 Schedule 1 (d) smoke generated on premises, (i) if an AO forms the opinion that; (A) the smoke has travelled to neighbouring premises: and (B) the nature, extent, smell, density or texture of the smoke is such as to constitute an unreasonable interference with the enjoyment of neighbouring premises by persons occupying those premises; or

31 Schedule 1 (ii) without limiting the generality of subparagraph (i), in the case of smoke from a solid fuel heater (A) a visible plume of smoke extends into the air above neighbouring premises from the flue of the chimney of the heater more than 15 minutes after it was lit; and (B) an AO forms the opinion that the nature, extent, colour, smell or density of the smoke is such as to constitute an unreasonable interference with the enjoyment of neighbouring premises by persons occupying those premises;

32 Wood smoke example Sent a letter to alleged asking them to contact us to discuss the excessive smoke. Visited the home of source of the smoke. Inspected the wood and wood heater. Asked if he could light the fire. Process looked good but smoke still excessive. Indicator showed that air intake fully open, however when door opened smoke from flue reduced. They agreed to get someone to service. Found air intake was blocked.

33 Wood smoke example Smoke level deemed acceptable.

34 Odour BBQ Chicken takeaway Council officers asked for assistance as store has installed state of the art exhaust system, but Council were still getting odour complaints.

35 Schedule 1- Odour (b) Odour generated on Premises, if AO forms the opinion that; (i) the odour has travelled to neighbouring premises; and (ii) the nature, intensity or extent of the odour is such as to constitute an unreasonable interference with the enjoyment of the neighbouring premises by persons occupying those premises;

36 Odour BBQ Chicken takeaway Asked complainant for a diary, they were not happy, but insisted on a week diary prior to any action. Diary returned indicating bad odours from 10am to 10pm every day. Carried out 2 site visits during the day and no odours detected at front of complainant s property. Wind direction was suitable to carry out a site inspection Discussed with complainant. They identified that Friday and Sunday evenings were the busiest periods and the worst odours.

37 Odour BBQ Chicken takeaway Carried out monitoring on 2 Sundays and only very slight odours. Explained to complainant that business is compliant, their comment was We don t like it so it should not be allowed Activity was conducted with Development approval and with industry standard equipment. Closed the case correspondence sent to complainant.

38 Spray booth complaint example First complaint received regarding this site was paint fall out onto cars. Stage 1 letters sent to complainant and source. Inspected complainant site. - Dried paint found in car park and on cars. Complainant stated that it was intermittent.

39 Spray booth paint fall out Inspected spray painting facilities and looked at filters. They had torturous path filtration. When cleaned the booth the dried paint pieces went through the torturous path. Filters changed.

40 Spray booth odour Odour complaints also received (separate complainants) - Stage 1 correspondence sent as complaint was separate issue. Diaries received. - reviewed diaries and developed monitoring plan Monitoring carried out. - Odours experienced, visited the site. The practice when busy was to remove painted parts from booth to allow to cure outside. Explained why practice was not acceptable.

41 Schedule 1- Part 3 Things that are not local nuisance for the purposes of 17 (1); (a) noise or other nuisance from blasting operations carried out as part of a mining operation within the meaning of the Mines and Works Inspection Act 1920 or Mining Act 1971; (b) noise or other nuisance from any activity carried out in accordance with a program for environment protection and rehabilitation that is in force fpr mining operations under Part 10A of the Mining Act 1971; (c) noise or other nuisance from the keeping of animals in accordance with a development authorisation within the meaning of the Development Act, 1993;

42 Schedule 1- Part 3 (ca) noise, odour or waste from animals living in their natural habitat (other than such animals that have been actively encouraged, by feeding, to gather in a particular area); (d) noise or other nuisance from any other activity carried on in accordance with an authorisation (including approval, consent, licence, permit, exemption or entitlement) granted under any other Act (other than this Act), provided that (i) the authorisation imposes requirements to control, minimise or eliminate (as far as reasonably practicable) any noise or other forms of nuisance likely to result from the activity; and (ii) those requirements are complied with;

43 Schedule 1- Part 3 (e) noise or other nuisance from fireworks; (f) noise or other nuisance from sporting or associated activities at sporting venues; (g) noise or other nuisance from community events run by or on behalf of the council (subject to any conditions imposed by council); (h) noise from public infrastructure works; (i) subject to Part 2 Clause 4(1)(a)(i)(D), noise from vehicles (other than vehicles operating within, or entering or leaving business premises);

44 Schedule 1- Part 3 (j) noise or other nuisance that may be the subject of proceedings under (i) the Community Titles Act, 1996; or (ii) the Strata Titles Act, 1988; or (iii) the Residential Tenancies Act, 1995; (k) an activity on, or noise emanating from, licensed premises within the meaning of the Liquor Licensing Act, 1997, in respect of which a complaint may be lodged with the LL Commissioner under Section 106 of that Act; (l) behaviour in respect of which a complaint may be lodged with the LL Commissioner under Section 106 of the Liquor Licensing Act, 1997;

45 Schedule 1- Part 3 (m) noise principally consisting of music or voices, or both, resulting from an activity at domestic premises; (n) noise from activities carried on in the normal course of a school, kindergarten, child care centre or place or worship; (o) noise created by a dog barking or otherwise that may be the subject of an offence under Section 45A(5) of the Dog and Cat Management Act, 1995; (p) aircraft or railway noise; (q) noise Caused by emergency vehicle sirens; (r) noise outside of the human audible range

46 Questions?