Environmental noise in urban areas – moving towards greater acceptance?

Introduction
Existing rules and guidelines
Stockholm model
Coordinated rules considered

Introduction

The increasing problem of housing shortages in several Swedish cities has given rise to a political debate on whether existing rules on noise emissions constitute an impediment to the construction of new dwellings in urban areas. In these areas, noise emissions from different sources often exceed the typically applied noise target values.

Noise disturbances are generally regarded as a significant problem for public health and the environment. Noise tends to be one of the key issues when planning for increased urbanisation in central city areas. In recent years, the debate on noise emissions has concerned the prospects of locating residential buildings in areas subjected to noise from traffic infrastructure (eg, roads and railways) or industrial activities. These questions constitute the subject matter of a recent government official report (SOU 2013:57). The purpose of the governmental investigation is to achieve increased coordination between existing noise-related rules applied in the planning and building permit processes and environmental permit processes, in order to facilitate planning and building of new dwellings in noisy urban areas.

Existing rules and guidelines

In Sweden, limitations or target values for noise emissions from, among other things, road or railway traffic and industrial activities are not set by statutory law. Instead, such limitations follow authority guidelines or various preparatory works and are subject to interpretation in court practice. Moreover, there is not always a common view or coordination among authorities on how to assess noise issues (eg, when planning new residential buildings). Existing guidelines may be applied differently by different local authorities in the planning and permit processes, and with local and regional deviations. However, this has been much criticised by both responsible authorities and private developers.

The Planning and Building Act contains rules regarding the localisation of buildings to be applied in planning and building permits matters. Buildings are to be located in areas suitable for the purpose in question, considering, among other things, health and safety aspects and the means to avoid or prevent noise pollution. Buildings must have the technical characteristics required to limit indoor noise. Environmental noise cannot exceed a level that causes an unacceptable risk to the health of persons residing in the building or its surroundings. The Environmental Code also requires that the localisations of activities (eg, industry and infrastructure) are chosen with respect to the protection of human health and the environment. However, neither the act nor the code contain any defined limitation or target values on noise emissions.

Several Swedish governmental authorities – the National Board of Housing, Building and Planning, the National Board of Health and Welfare, the Environmental Protection Agency and the Work Environment Authority – have issued general guidelines on noise emissions in residential areas. These guidelines are merely recommendations and are not legally binding when planning or constructing dwellings. The different guidelines are discrepant and overlap in part.

The general guidelines most frequently referred to are those of the National Board of Housing, Building and Planning, which state that noise must not exceed:

• 30 A-weighted decibels (dB(A)) equivalent sound level indoors;
• 45 dB(A) maximum sound level indoors at night;
• 55 dB(A) equivalent sound level outdoors; and
• 70 dB(A) maximum sound level outdoors.

According to the guidelines, it is possible to deviate from the target values in central areas of cities and major urban areas, or when existing settlements adjacent to public transport routes in major cities are to be added to with new buildings. The Environmental Protection Agency has also issued general guidelines for environmental noise in dwellings, but it has stated that its guidelines should not be used in order to make it possible for dwellings to be built close to industrial areas (ie, derogations are considered unacceptable).

In a legislative proposal from 1997 (the infrastructure proposition, Prop 1996/97:53), the government held that the following noise target values should not be exceeded when planning or constructing dwellings:

• 30 dB(A) equivalent sound level indoors;
• 45 dB(A) maximum sound level indoors at night;
• 55 dB(A) equivalent sound level outdoors at the façade; and
• 70 dB(A) maximum sound level at outdoor patios to dwellings.

According to the proposal, the target values shall be applied with regard to what is "technically possible and economically reasonable", meaning that certain exceptions could be made. The proposition has never been adopted by Parliament and the target values are therefore not legally binding. Nonetheless, the values are often referred to in the decision making of authorities or case law.

In case law, the issue of noise and which noise target values to apply are unclear. Even though courts often refer to the 2008:1 guidelines of the National Board of Housing, Building and Planning or the infrastructure proposition of 1997, they also make their own assessments on reasonable target values and noise reduction measures. The Supreme Administrative Court has, for instance, disregarded the noise target values stated in the infrastructure proposition in a case (RÅ 2008 not 13) concerning the approval of a detailed development plan in Stockholm city centre, where the noise levels at the building's façade considerably exceeded the proposition's target values. The decision demonstrates that the courts do not consider themselves bound by any specific noise guidelines or statements from the authorities.

Stockholm model

The general guidelines regarding noise from the National Board of Housing, Building and Planning are normally applied in matters regarding planning under the Planning and Building Act and in permit proceedings according to the Environmental Code. Arguably, rather than being simple recommendations, they are seen to have regulation status (although this is informal). However, in certain cases the courts have been wiling to sidestep these general guidelines, especially in rulings concerning detailed development plans.

When adopting detailed development plans, the risk of noise pollution affecting residential areas must be considered. In June 2013 the Land and Environmental Court of Appeal (in full session) decided to uphold a decision by the Municipality of Stockholm to adopt a detailed development plan for a residential block in the central parts of Stockholm (P 11296-12). The noise target values set by the National Board of Housing, Building and Planning were not met. However, the court established that the criteria for the Stockholm model were fulfilled. According to this model, it is possible to depart from the noise target values in areas close to public transport areas if it is appropriate to build dwellings in the area even though outdoor target values are not met. The Stockholm model has been applied by the county of Stockholm in building and development projects for a long time. The court considered it reasonable to accept this model (ie, increased impact of environmental noise in an already densely built-up area) and to consequently deviate from the general guidelines.

The decision establishes that a higher level of noise is acceptable in central parts of Stockholm than in less populated Swedish cities, as long as the noise does not reach levels detrimental to health (this level is undefined). Local or regional differences and deviations from generally applicable noise levels are therefore considered tolerable.

Coordinated rules considered

Existing rules on noise pollution are believed to impede the building of new dwellings in Sweden, especially in urban areas where there is a great demand for new residential areas. However, locations of new residential buildings are often hindered by existing infrastructure. Also, new residential areas close to infrastructure or other activities causing noise may also entail a risk of restricting existing activities or hampering the development or expansion of these activities.

The lack of cohesive and uniform rules regarding noise leads to uncertainties among parties involved in the building process – including municipalities, authorities, operators, building companies and infrastructure managers. In order to increase the building of new dwellings, the government has decided to investigate the possibility of improving coordination of the existing regulations and guidelines regarding noise. The result of this survey was presented in a governmental report in 2013 (SOU 2013:57). The report includes a proposal for a legal regulation of applicable and acceptable noise target values, and possible derogations from the values. The proposed noise target values are in line with the assessments made in the previous legislative proposal from the government on target values (the infrastructure proposition) and concur with the general guidelines of the National Board of Housing, Building and Planning (2008:1). However, increased possibilities for exceptions from the target values are proposed. The main principle for exceptions is that at least half of the rooms in a residential building shall be directed towards a side of the building where the target values are not exceeded. The report concludes, among other things, that it ought to be possible to build more one-room flats in noisy environments without neglecting reasonable requirements on acceptable living conditions. However, one-room flats facing only one side of the building where the outdoor noise level exceeds 65 dB(A) should not be allowed.

In addition, the report suggests that the same noise target values should apply both in planning and construction under the Planning and Building Act and where authorities consider permit applications for environmental hazardous activities (causing noise) under the Environmental Code. Coordination between these two pieces of legislation would mean that exceptions from target values accepted in the planning process for dwellings would also be part of a permit for a noisy environmentally hazardous activity, with conditions for the activity in the permit adapted to such dwellings. The report holds that new legislation on harmonised rules on noise would work to increase predictability in the process of planning and building of dwellings in noisy areas to the benefit of the authorities' processes, as well as to business and industry. Also, extending the opportunities to build dwellings in noisy urban areas puts the emphasis on individual choice in living in such an environment.

It remains to be seen whether the government will submit a bill to Parliament for the adoption of new legislation based on the report's suggestions. Such a bill can be expected at the earliest during Spring of 2014.

For further information on this topic please contact Mikael Wärnsby or Madeleine Edqvist at Advokatfirman Lindahl KB by telephone (+46 40 664 66 50), fax (+46 40 664 66 55) or email (mikael.warnsby@lindahl.se or madeleine.edqvist@lindahl.se). The Advokatfirman Lindahl KB website can be accessed at www.lindahl.se.