Besides the planning principle in § 50 of the Federal Immission Control Act, which is significant for all issues in the context of urban land-use planning, especially the installation-oriented provisions in Part II of the Federal Immission Control Act are of importance.
According to § 4 of the Federal Immission Control Act, "the construction and operation of installations which, on account of their nature or operation, are particularly likely to cause any harmful effects on the environment or otherwise endanger or cause any significant disadvantages or significant nuisances to the general public or the neighbourhood ... shall be subject to licensing".
The distinction that is made in the Federal Immission Control Act between installations subject to licensing and installations not subject to licensing enables the planners to consider and classify the ecological relevance of a type of installation also in terms of noise protection. What has to be considered, however, is the fact that the catalogue of installations subject to licensing fluctuates significantly due to the implementation of European
law.
It is of practical relevance that the determination of sound immissions and their assessment in terms of pollution control rights complies with the
Technical Instructions on Noise (TA Lärm) (available in German) in the case of installations subject and not subject to
licensing.
Immission Control Act in combination with the 4th Federal Immission Control Ordinance distinguish between installations subject to a formal licensing procedure and those only requiring a simplified procedure. The allocation to these types of procedures is decided by the placement in "Column 1" or "Column 2" of the index, representing a criterion for the assessment of the immission relevance of a type of installation for the purposes of planning.
The licensing requirement covers all parts of an installation and all procedural steps necessary for its operation as well as related facilities which are
spatially and technically linked to these parts of the installation and procedural steps and which can be
significant for both the emergence and the prevention of harmful effects on the environment.
Several (smaller) installations of the same type form a joint installation (subject to licensing) if they are located on the same company site, are linked by joint company facilities, serve a joint technical purpose and jointly meet or exceed the performance limits or sizes of an installation relevant for the licensing obligation.
According to § 5 para. 1 of the Federal Immission Control Act, the operator of an installation subject to licensing has the obligation to construct and operate the installation "in such a way that ... harmful effects on the environment or any other hazards, significant disadvantages and significant nuisances to the general public and the neighbourhood are avoided and
precautions are taken to prevent any harmful effects on the environment ... in particular by such measures as are appropriate according to the best available techniques".
§ 22 of the Federal Immission Control Act poses obligations on operators of installations not subject to licensing as well. According to para. 1, they "shall be constructed and operated in such a way that any harmful effects on the environment which are avoidable with the use of the best available techniques are prevented and any harmful effects on the environment which are unavoidable with the use of the best available techniques are kept to a minimum".
§ 26 of the Federal Immission Control Act regulates that "the competent authority may order that the operator of an installation subject to licensing or ... of an installation not subject to licensing shall have the nature and type of the emissions released from such installation and the immissions occurring within the sphere of influence of such installation determined by one of the agencies designated by the authority responsible pursuant to Land law if there is reason to fear that any harmful effects on the environment may be caused by such installation".
The index for the emission and immission determination agencies for Baden-Württemberg designated by the authorities pursuant to § 26 of the Federal Immission Control Act is cited in
section 2.4.4.1.
Despite the definition of the term "installations" given in § 3 of the Federal Immission Control Act, we have to decide in everyday life whether noises are the result of individual behaviour and therefore represent a public nuisance or whether they are installation noises and are significant in the context of pollution control rights and building law. In the majority of the cases we find an answer when we deliberate whether
technical measures were able to prevent the disturbing noise. Noise pollution resulting from individual behaviour usually cannot be prevented through technical measures as the noises cannot be influenced by the "best available techniques".
The expression "best available techniques" anchored in the field of pollution control rights always causes interpretational difficulties in practice when it comes to assessing installations whose technical purpose is to produce sound and be as loud as possible. Examples for this are the hour strike of tower and church clocks (the ringing of the bell for liturgical services is not subject to the requirements of immission control), call and warning signals as well as loudspeaker announcements.
The following important aspect must be considered in the context of the "installations" term, which also covers certain types of
craft (those not participating in public road traffic, like forklifts or building machines):
The noises of cars and vehicles, which are not included in the definition of "installations" (passenger cars and trucks), are by no means unconsidered in the context of installation noises. What has to be added to the installation noises is the noises from cars and vehicles on the company site, especially of trucks, which have a function for the operation of an installation. It is of no significance whether the cars are company-owned or belong to customers, collectors or suppliers. The traffic-related components of installation noises (running engines, shunting and loading noises, the banging of doors) are of primary importance especially for forwarding companies, bus companies, commercial parks, wholesale firms but also for nearby supermarkets, drinks cash-and-carry and car parks in front of hotels in a residential area.
Building noise as a particular case of industrial noise is also subject to the immission control rights. Requirements for the operation of building machines on building sites are defined pursuant to the Ordinance on Noise from Building Machines (15th Federal Immission Control Ordinance) as well as to the
General administrative regulation on the Protection from Building Noise Immissions (Allgemeine Verwaltungsvorschrift zum Schutz gegen Baulärm - Geräuschimmissionen) (available in German).
Building law
Especially the Federal Building Code (Baugesetzbuch) and the Federal Land Utilisation Ordinance (Baunutzungsverordnung) treated in
section 2.3.2 must be considered in the context of commercial uses from the point of view of urban land-use
planning.
Planning legislation includes a general permissibility of commercial enterprises in areas pursuant to § 9 (industrial areas) and § 8 (commercial areas) of the Federal Land Utilisation Ordinance. Commercial enterprises are also permitted in Special residential areas (§ 4a of the Federal Land Utilisation Ordinance), in village areas (§ 5) and in mixed and core areas (§§ 6 and 7) as long as they do not substantially disturb the residents. Non-disturbing commercial enterprises can be permitted exceptionally in small housing estates (§ 2 of the Federal Land Utilisation Ordinance) and in general residential areas (§ 4).
We also want to point out to § 15 para. 3 of the Federal Land Utilisation Ordinance, which regulates that the permissibility of installations in building areas shall not only be assessed pursuant to procedural classifications within the Federal Immission Control Act and the ordinances issued on its basis. This makes clear that an "installation subject to licensing" in the context of pollution control (e.g. a carwash) does not exclusively have to be placed in an industrial area.
The possibility to structure building areas as presented in § 1 para. 4 of the Federal Land Utilisation Ordinance plays a major role for the planning of commercial and industrial areas, which shall account for the requirements of noise protection. This means that the legally binding land-use plan can define the structuring of a building area according to the type of firms or installations and their particular needs and characteristics for example.
This allows for the distribution of the generally or exceptionally authorized firms and installations to particular parts within the building area. What must be preserved, however, is the sum of the permitted uses pursuant to the building area standards for the area as a whole. A distribution of the permitted uses and installations to separate areas is only possible for commercial and industrial areas. In these cases, the above-mentioned requirement only refers to the sum of all commercial and industrial areas within a municipality (RIST, 1990).
The far-reaching possibilities to structure industrial and commercial areas can be used to effectively regulate the settlement of noisy installations in due consideration of the local noise situation and the distances to other uses. The definition of maximum values for sound emissions in the form of an area-related sound power level (definition of the average radiated sound power per square metre area) also answers this purpose. The limitation of the noise potential from settling firms in the legally binding land-use plan corresponds to the principle according to which new problematic situations shall not be created in the context of the planning of development areas (prohibition of deterioration).
Problematic immission conditions are a typical feature of conflict situations. § 1 para. 10 of the Federal Land Utilisation Ordinance shall facilitate the planning of such areas by generally or exceptionally permitting expansions, alterations, changes of use and modernizations of installations even if particular building installations or other installations were inadmissible in a predominantly built-up area according to §§ 2 to 9 of the Federal Land Utilisation Ordinance.
