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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2018-06-06 Daily Xml
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Local Nuisance and Litter Control Act

The Hon. F. PANGALLO (15:49): I rise to speak about the unintended consequences of a piece of legislation passed in July last year that threatens to wreak havoc in communities and potentially spark spats among neighbours. Take a walk east along North Terrace on a windy day and if you listen carefully you will hear the autumnal rustle of fallen leaves from plane trees blowing around our beautiful boulevard of art, culture and sophisticated fashion.

But, who would have thought that sound, not much louder than blowing leaves, could land a home owner with a fine of up to $30,000 and stop them from using their reverse cycle air conditioner on a cold winter's night? Or it could be the playful excitement of children in the swimming pool or wafts of lamb, pork or beef on a smoking spit barbecue, much like the former treasurer, the Hon. Tom Koutsantonis, likes tweeting about.

If a council officer forms the opinion—and let me repeat that: forms the opinion—it is creating a nuisance for the complaining neighbour, then you are in strife. This is the fallout from the innocuous sounding Local Nuisance and Litter Control Act 2016. This began with the good intent of having a clean and healthy environment we can all enjoy by controlling the things that can annoy people and constitute a nuisance like noise, junk and litter, vibration that causes doors and windows to rattle, dust, chimneys spewing smoke and, curiously, odours.

Among things unclear in this act, the exact nature of a big stink is not defined, but I imagine it could be anything from rotting waste, garden compost and manure, to even spicy or smoky cooking that someone could take offence at. It is not inconceivable for a vegan to get cranky at his neighbour's sizzling kranskys.

This act is another example of government cost shifting onto councils. Previously, pollution and noise complaints were the domain of the Environment Protection Agency, which the last government pared to the bone. Now councils and police have the authority to police it. However, it is the way one council, Charles Sturt, is interpreting it that should ring alarm bells for us all. The inconsistencies were brought to my attention by a constituent, Mr Rocie Franze, whose life has been made unbearable by a bumbling council determination which has descended into pure farce.

During the summer there was a complaint first about his children splashing in the backyard pool, then his air conditioner. It must be said that Mr Franze's air conditioner is almost brand-new, was approved by the same council in building plans for his new home, is fully compliant with Australian standards and is no different to countless other split systems in suburbia.

Without his knowledge, the council had the EPA test the noise level from a bedroom in the plaintiff's home because they did not possess the correct measuring equipment. With an exterior sliding door closed, and the bedroom door open, it measured 30 decibels. With the sliding door open—not a usual practice for anyone—and the bedroom door open, it was 35 decibels. By EPA standards, testing was flawed as it requires doors to be closed before measurements are taken.

The readings fell between a whisper and rustling leaves and what you would hear in a quiet rural area. The EPA's acceptable levels for air conditioners is 45 decibels at night and 55 decibels during the day. In this act, no benchmark levels are set—no objectivity, just the subjective opinion of the authorised council officer, who does not have the required equipment to start with, even though under this law there is a provision to take measurements and carry out tests. To paraphrase section 17(1)(e), things can be declared to constitute a local nuisance if an authorised person forms the opinion. The council has harangued and threatened Mr Franze, unless he fixes it, except nobody can tell him what is an acceptable level and neither does the act.

This week, the council returned with an EPA inspector for yet another test using EPA equipment. Done correctly this time, it registered an even lower reading. SA-Best will be looking at a private members' bill to clear up all the confusion and deny the TV program Utopia another side-splitting storyline about bureaucracy gone mad. As for Mr Franze, he is still to get council's verdict, and he has racked up $8,000 in legal fees and costs to consultants that he is not likely to recover.

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