Disputes often arise between neighbours about environmental issues including light pollution, noise pollution, and pollution from smoke, dust, odour and fumes. This factsheet will look at these issues specifically, but also the general issue of neighbourhood disputes, including what you can do to resolve these disputes and when you can take a matter to the ACT Civil and Administrative Tribunal (ACAT).
General environmental duty
There is a general environmental duty in the Environment Protection Act 1997 (ACT) (‘EP Act’) that every person must take steps that are practicable and reasonable to prevent or minimise environmental harm or environmental nuisance caused, or likely to be caused, by an activity conducted by that person (section 22(1) of the EP Act).
“Environmental nuisance” is defined in the EP Act as “unreasonable interference with the enjoyment by the public, a section of the public or a person of a place or area, if the interference caused or likely to be caused by (a) dust, fumes, light, noise, odour or smoke; or (b) an unhealthy, unsightly or otherwise offensive condition because of pollution”.
The duty set out in the EP Act is a good starting point for neighbourhood environmental disputes – it means that you and your neighbours each have a responsibility to make sure that you do not cause environmental harm or nuisance to the other.
Light pollution is where artificial light illuminates areas that not intended to be lit. An example of light pollution could be artificial lights shining into a neighbour’s window, or overly bright lights which illuminate a larger area than is appropriate.
|Outdoor lighting |
There are special standards for outdoor lighting. Outdoor lighting is permanently installed exterior lighting and interior lighting systems which emit light that impacts on the outdoor environment. All outdoor lighting must comply with Australian Standard 4282 – Control of the obtrusive effects of outdoor lighting (AS 4282 – 1997). The guidelines generally apply to new light installations; however, some apply to remedial measures for existing light installations (section 1). AS 4282 – 1997 does not apply to road lighting, advertising signs and lighting systems that are cyclic or flashing.
Noise generated in residential areas is a common cause of complaints. The Environmental Defenders Office ACT (EDO ACT) has a Noise Pollution Factsheet with detailed information about noise in the ACT.
In general, noise in the ACT is regulated by the EP Act and accompanying regulations. The EP Act does not cover some types of noise (including noise from trains, aeroplanes, animals and cars on the road).
Under the EP Act, the ACT is divided noise zones. There is a different standard of noise allowed in each noise zone. Different standards apply for residential and commercial noise.
Smoke, odour and fumes
Smoke, odour and fumes may an environmental nuisance or harm under the EP Act. A pollutant being emitted into the air from a fire is taken to not cause environmental harm unless burning the substance burned in the fire, or the lighting, using or maintaining of the fire, is an offence under any of the following sections (Section 13 of the Environment Protection Regulation 2005 (ACT)):
- Open-air fires prohibited except in certain circumstances (section 9);
- Burning certain substances requires environmental authorisation (section 10);
- Fire bans in bad weather (section 11);
- Indoor fires prohibited unless harm minimised (section 12).
Unit title property (strata)
If you live in an apartment, unit or townhouse – special rules probably apply to you. Most apartments, units or townhouses are held under unit title (also called strata title). Unit title is a system where common areas are owned and maintained collectively by all occupiers. All owners of unit title property automatically become members of the owner’s corporation. All owners corporations have rules that set out your obligations in relation to a range of issues – including environmental nuisance issues. The rules apply to all occupiers within a unit titles plan, including tenants and owners. Ask your owners corporation manager for a copy of the rules if you do not already have one. In the absence of a rules document, default rules as contained in schedule 4, Unit Titles (Management) Act 2011 (ACT) apply.
My neighbour is causing an environmental nuisance – what should I do?
- You should begin by speaking with your neighbour about the issue – especially if your actions are likely to affect them. Give your neighbour a chance to acknowledge your concerns, and take their views into consideration when deciding what to do next. You should write down what was said in discussions with your neighbour so that you have a record of what has been discussed and agreed upon (or not);
- Mediation: If you cannot reach an agreement with your neighbour, you can try mediation. Mediation is a discussion facilitated by an independent person who has been trained in resolving conflict. The Conflict Resolution Service (www.crs.org.au) is recommended by the ACT government and can help with disputes between neighbours.
- Lodge a complaint: You can lodge a complaint by writing to the Environment Protection Authority (EPA). This process is summarised in the flow chart below.
- Nuisance Application in ACAT: A nuisance application is an application for relief of a nuisance. You can make a civil dispute application to deal with a nuisance (section 15, 16 and 17 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (‘ACAT Act’)) or to deal with interference with use or enjoyment of land. You can apply for particular orders to deal with the interference. You can also apply for monetary damages and/or an order to stop the interference or grant other legal relief (section 22 of the ACAT Act, which gives ACAT the powers of the Magistrates Court in its civil jurisdiction). For more information about going to ACAT, please see the information about lodging a civil dispute application on the ACAT’s website.
Lodging a complaint
- You can lodge a complaint by writing to the Environment Protection Authority (EPA)(through Access Canberra). The EPA will send a letter to your neighbour, informing them of their duty to not cause environmental nuisance or harm.
- If not resolved/further complaint, the EPA will conduct its own investigations to determine if environmental nuisance or harm has been caused.
- If the EPA finds that the lighting amounts to environmental nuisance or harm, your neighbour may be issued with a warning letter or fine. In more serious cases, they may be served with an Environmental Protection Order (EPO). Contravening an EPO is a serious matter and may result in a large penalty and in some circumstances, proceedings in the Magistrate’s Court.
Where can I find more information?
You can find out more information through the following:
- Access Canberra (in particular, see Light Pollution; Noise Pollution; and Air Pollution);
- Conflict Resolution Service;
- The Legal Aid ACT Helpline (1300 654 314);
- The EDO at www.edo.org.au;
- Your local EDO Canberra office on (02) 6243 3460.
Disclaimer: The law described in this fact sheet is current at January 2019. This fact sheet has been designed to give readers plain English background information in planning and environmental law in the ACT. It is brief, for general information purposes only and does not replace the need for professional legal advice in individual cases. To request free initial legal advice, please contact us on (02) 6243 3460. While every effort has been made to ensure the information is accurate, the EDO ACT does not accept any responsibility for any loss or damage resulting from any error in this fact sheet, or reliance or use of this work. Duplication and reproduction of the information is permitted with acknowledgment of the EDO ACT. This fact sheet was produced with the assistance of funds made available by the ACT Government through the Justice and Community Services Directorate.