Environmental Science and the Law – Noise Pollution – © Brian Foley, 2006.

Noise Pollution

A 28-year old man stabbed an 18-year old neighbour to death in a dispute over loud music on Saturday 28th Janurary in Gaeserndorf, just north of Vienna. Witness claimed to police that the man stabbed the victim numerous times with a 21cm switch blade after he blared music from his home…

- Metro, 20 January 2006.

Introduction

Generally speaking, noise pollution is not as comprehensively regulated as water or air pollution. Whereas there are several pieces of legislation which have some regulatory function in respect of noise, there is no overarching regulatory structure specifically dedicated towards the issue of noise pollution. It is interesting, however, that s.106 of the Environmental Protection Agency Act, 1992 empowered the Minister to make regulations for the purpose of the prevention or limitation of any noise which may give rise to a nuisance or disamenity, constitute a danger to health, or damage property. However, to date (and to my knowledge) the only regulations made pursuant to s.106 have been to proscribe a particular type of form to be used when making a complaint to the District Court about noise.[1] Things, however, may be changing due to (you guessed it) developments at the European level.

In recent years two Directives (2002/49 & 2002/30) have been enacted to deal specifically with issues of noise pollution in respect of noise emissions from airports and in respect of transport infrastructure generally. Indeed, Ireland has recently passed regulations in the form of the European Communities (Air Navigation and Transport Rules and Procedures for Noise Related Operating Restrictions at Airports) Regulations 2003 to regulate noise emissions at airports. It remains, however, that noise pollution is not, in any general sense, as regulated as water or air pollution.

It is worth noting, however, that whereas Ireland has no general noise regulations, the EPA, when granting an IPPC licence or waste licence application can stipulate emission limit values which basically limit the types of emissions permitted from a particular activity. Under s.3 of the Environmental Protection Act, 1992[2] emissions include noise emissions and thus the EPA may “indirectly” regulate noise pollution from activities which are subject to IPPC or which are regulated by the Waste Management Acts, 1996-2001.[3]

Our focus in this topic will be to briefly examine the methods by which one may seek to restrict or control noise emissions and then to take a brief look at the recent Directives and the recent implementing regulations.

Nuisance

Clearly, a noisy neighbour, or indeed a noisy factory could constitute a nuisance. We have already spent some time examining the tort of nuisance, so no more will be said about it here.

Complaints About Noise to the District Cout

Section 107 of the Environmental Protection Agency Act, 1992 allows the EPA, a local authority, or a private person to complain to the District Court about levels of noise. To ground a successful complaint the noise must be

[S]o loud, so continuous, so repeated, of such duration or pitch or occurring at such times as to give reasonable cause for annoyance to a person in any premises in the neighbourhood or to a person lawfully using any public place,

Upon hearing the action the Court may order the person or body making, causing or responsible for the noise to take the measures necessary to reduce the noise to a specified level or to take specified measures for the prevention or limitation of the noise and the person or body concerned shall comply with such order.

It is important to note that under s.107(2), it is always a good defence to show either that the noise-maker

§  in the case of noise caused in the course of a trade or business:

o  took all reasonable care to prevent or limit the noise to which the complaint relates

o  by providing, maintaining, using, operating and supervising facilities, or by employing practices or methods of operation, that, having regard to all the circumstances, were suitable for the purposes of such prevention or limitation, or

§  that the activity was licensed under either the Air Pollution Act, 1987 or the Water Pollution Acts, 1977-1990 or is now licensed under the IPPC regime.

It should be noted, however, that this procedure cannot be used to make complaints about noise from aircraft. Lastly, the Environmental Protection Agency Act, 1992 (Noise) Regulations, 1994 contain the particular type of form to be used for making these complaints to the District Court.

The Service of a Notice by the EPA

Aside from bringing a complaint in the District Court, the EPA may also serve notice requiring measures to be taken to limit or prevent noise. This, however, is not a general power – it can only be exercised in relation to the listed class of activities which are subject to IPPC licensing and in cases where an activity has not yet actually obtained an IPPC licence. It could not be used, therefore, against a noisy neighbour or against noise coming from a pub in Temple-bar.

Building Regulations

Building regulations are, essentially, the descendants of the old system of Building Bye-laws which set certain quality standards for the construction of dwellings. Part E of Schedule II of the Building Regulations 1997 provide that dwellings must, in the manner proscribed, be insulated against “airborne sound” by providing certain standards of walls and floors to resist such sound. Basically, the regulations, insofar as is relevant, attaches standards to two types of walls. They are walls which

§  Separate a dwelling from another dwelling or from another building, or

§  Separate a habitable room within a dwelling from another part of the same building which is not used exclusively with the dwelling,

So, you can see that the relevant walls are those which divide the dwelling from another building, or those which divide rooms in the dwelling from other areas in a building such as common halls or lobbies. These walls must have a “reasonable resistance to airborne sound”. The same standard is proscribed in respect of floors which separate a dwelling from another dwelling (e.g. the floor of an apartment over another apartment) or floors which separate a dwelling from another part of the same building which is not used exclusively with the dwelling (e.g. floor of an apartment over a lobby or shop below).

Miscellaneous Statutory Provisions

There are several relevant miscellaneous statutory provisions which have some regulatory function in respect of noise.

§  The Road Traffic (Construction, Equipment and Use of Vehicles) Regulations, 1963 provide that certain techniques are to be used in the manufacture of vehicles so that they do not create excessive noise.

§  The European Communities (Construction Plant and Equipment) (Permissible Noise Levels) Regulations, 1988 were passed to give effect to a wide range of EC Directives[4] aimed at reducing the level of noise from the operation of various heavy machinery including tower cranes, generators, those heavy hand-held power drill things used to smash up pavements, bulldozers and so on.

§  The European Communities (Lawnmowers) (Permissible Noise Levels) Regulations, 1989 were passed to give effect to European Directives which set permissible levels of noise for motorised lawnmowers.

European Directives

Directive 2002/30/EC represents the latest attempt by the European Union to offer some protection against noise from airports. This is a relatively contentious topic and there have been several cases taken under the European Convention on Human Rights in an attempt to seek damages from the noise created by airports and their interference with ones private property and private lives. On the other hand, noise reduction clearly involves technology change, and that, to put it bluntly costs money. Considering the ferocious level of price competition between some airlines, it is obvious that any legislation requiring particular changes to be made to aircraft may be met with resistance. Indeed, as I say above, Directive 2002/30/EC is the latest attempt to deal with this problem – it repeals the previous and quite contentious “Hushkits” Regulation (Regulation 925/1999).

As far as is relevant, the objective of the Directive is to “to lay down rules for the community to facilitate the introduction of operating restrictions to limit or reduce the number of people significantly affected by the harmful effects of noise”. The core of the Directives approach to noise reduction is in what is known as a “balanced approach” the essence of which is defined in the Directive as

An approach under which Member States shall consider the available measures to address the noise problem at an airport in their territory, namely the foreseeable effect of a reduction of aircraft noise at source, land-use planning and management, noise abatement operational procedures and operating restrictions.

The essence of this approach is that reduction of airport noise does not necessarily have to focus on aircraft changes, but can include alternations to airports themselves and indeed to the modus operandi of airports. However, the Directive does stipulate that certain aircraft may be classed as “marginally compliant” which means, essentially, that they will be placed on a list for eventual withdrawal from the fleet. It should be noted that the Directive specifically allows city airports, where noise may be of more significance than in the country-side, to adopt stricter standards than set out in the Directive.

The European Communities (Air Navigation and Transport Rules and Procedures for Noise Related Operating Restrictions at Airports) Regulations 2003 were passed on 26 March 2003 for the purpose of giving effect to the Directive. These regulations specify that the Irish Aviation Authority (“IAA”) is to be vested with many of the regulatory functions created by the Directive.[5] It is responsible for ensuring that Airports adopt the “balancing approach” to noise reduction to comply with obligations set under the Directive, and it is responsible for creating exemptions in respect of “marginally compliant” aircraft in certain cases.[6] It is notable then that noise-management is essentially a function of the airports themselves in the first instance who are allowed to offer economic incentives as part of a noise-reduction programme.[7]

The above mentioned power to create exemptions is intended to deal with the problems caused by the operation of less-than-perfect aircraft by developing countries and also for their use in “exceptional or non-revenue” operations. The idea here is that regulation of aircraft noise should not be such as to cripple the fleets of developing nations or so as to prohibit the use of relatively noisy aircraft in “exceptional” or non-profit (e.g. UNICEF operations) situations.

Directive 2002/49/EC on the other hand, is directed not simply at airports, but at requiring member states to conduct surveys of noise pollution and to adopt strategic plans to deal with ambient noise (which means outdoor noise) from industry and major transport sources (roads, railways, airports). The Directive is also aimed at producing a pan-European standard for the measurement of noise through the harmonisation of noise indicators in the Member States. The main obligations imposed by the Directive are as follows:

§  Member states must conduct strategic noise-mapping exercises based on a common assessment method proscribed in the Directive which must be subject to public consultation and information gathered must be made publicly available.

§  The forwarding of information gathered to the European Commission, who ultimately hope to adopt a relatively global noise action plan.

§  The production of domestic noise action plans to address the problems of ambient noise.

The Directive is to have a phased effect. The first phase of noise maps and action plans are intended to address urban areas with populations exceeding a quarter of a million (i.e. Dublin) and all primary roads coupled with some, heavily used secondary roads, and the more heavily used railway lines (which means the DART and Dublin to Kildare service). Maps must be completed by 2007, and strategies formulated by 2008. The next phase of implementation will involve noise maps being and strategic plans being made for population centres with masses between 100,000 and 250,000 persons. This phase envisages noise map completion by 2012 and strategic planning completion by 2013.

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[1] One may also note that s.77 of the Roads Act, 1993 empowers the Minister to introduce regulations to combat noise from roads or from the construction of new roads. No regulations have been made under it.

[2] As amended by s.5 of the Protection of the Environment Act, 2003.

[3] In this regard one must note that the definition of “emission” used in the Waste Management Acts, 1996-2001 specifically provides that “emission” for the purpose of that legislation has the meaning assigned to it by the Environmental Protection Agency Act, 1992. The meaning given to emission in that latter Act, has since been modified by the Protection of the Environment Act, 2003 and thus new definition of emission is found in s.7 of the 2003 Act. However, the old 1992 definition had included noise as an emission anyway.

[4] The Directives given effect to by these regulations are Council Directive 84/532/EEC of 17 September 1984 on the approximation of the laws of the Member States relating to common provisions for construction plant and equipment and Council Directives 84/533/EEC of 17 September 1984 (as amended by Commission Directive 85/406/EEC of 11 July 19853), 84/534/EEC of 17 September 1984 (as amended by Council Directive 87/405/EEC of 25 June 1987), 84/535/EEC of 17 September 1984 (as amended by Commission Directive 85/407/EEC of 11 July 1985), 84/536/EEC of 17 September 1984 (as amended by Commission Directive 85/408/EEC of 11 July 1985), and 84/537/EEC of 17 September 1984 (as amended by Commission Directive 85/409/EEC of 11 July 1985) on the approximation of the laws of the Member States relating to the permissible sound power level of compressors, tower cranes, welding generators, power generators, powered handheld concrete-breakers and picks, and Council Directive 86/662/EEC of 22 December 1986 on the limitation of noise emitted by hydraulic excavators, rope-operated excavators, dozers, loaders and excavator-loaders.