Agents of Light (as a nuisance) Are Coming…

In early October 2023 the Local Nuisance and Litter Control (Guidelines) Amendment Regulations 2023 and Local Nuisance and Litter Control (Amendment of Act, Schedule 1) Regulations 2023 commenced operation, resulting in immediate and future amendments to the Local Nuisance and Litter Control Act 2016 (“the Act”) and Local Nuisance and Litter Control Regulations 2017 (“the Regulations”).

Proposed amendments to the Act.

Commencing on 1 April 2024 Schedule 1 of the Act which sets out what will be a local nuisance for the purposes of Section 17 of the Act will be amended in several ways. Perhaps most notably, and as rumoured, Part 2, Clause 2 of Schedule 1 will be amended to include light as a declared agent for the purposes of Section 17(1)(a) of the Act. A new subparagraph (ea) will be inserted into Clause 4 of Schedule 1 to define the circumstances where light will be a nuisance and this will involve an authorised officer forming an opinion that light has travelled to neighbouring premises and that, amongst other things, its intensity and colour are such as to constitute an unreasonable interference with enjoyment of the neighbouring premises. Various light emitting sources such as public street lighting has been excluded and cannot be a local nuisance.

In addition to the above, a new subparagraph (DA) will be inserted into Clause 4(a)(i) to capture noise from the operation of refrigeration equipment fitted on a vehicle that is parked and not being operated, where that noise has travelled to neighbouring domestic premises between designated times on designated days.

Amendments to the Act that have commenced

Separate from the above, a number of amendments to the definition of those things that are not a local nuisance set out in Clause 5 of Schedule 1 have been made including the removal of the exclusion from the definition of local nuisance of noise or other nuisance generated from activities that may otherwise have been the subject of proceedings under the Residential Tenancies Act 1995.

Further amendments to Clause 5 have commenced operation, including a ‘carve out’ which sees amplified music generated in the normal course of a school, kindergarten, child care centre or place of worship now potentially being a local nuisance.

Amendments to the Regulations.

The Local Nuisance and Litter Control (Guidelines) Amendment Regulations 2023 amend Regulation 4(1)(a)(ii) of the Regulations such that, in performance of its functions under the Act, a council that does not have guidelines for managing unreasonable complainant conduct must now have regard to the guidelines set out in Managing unreasonable conduct by a complainant. A manual for frontline staff, supervisors and senior managers as published by the New South Wales Ombudsman, March 2021. This document is available on the New South Wales Ombudsman website.

Previously, Regulation 4(1)(a)(ii) of the Regulations required a council that did not have guidelines for managing unreasonable complainant conduct must now have regard to the guidelines set out in Managing Unreasonable Complainant Conduct Practice Manual, 2nd edition, published by the NSW Ombudsman, May 2012. It appears that manual may no longer be available online.

With the advent of this amendment, it will be prudent for relevant Council staff and managers responsible for the administration and enforcement of the Act to ensure any reference links or documents pointing to the above manual are updated to reflect this change. Additionally, this change may be a good opportunity for any Councils without guidelines for managing unreasonable complainant conduct to consider implementing same.

For more specific information or assistance in relation to any of the content contained in this article please contact Paul Kelly on +61 8 8210 1248 or pkelly@normans.com.au or Dale Mazzachi on +61 8 8210 1223 or dmazzachi@normans.com.au.