INDUSTRIAL NOISE
4.1 Legal foundations

Pollution control rights and building law aspects have to be taken into account in the planning of commercial facilities.

Pollution control rights

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 here.

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 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 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 as a consequence of the implementation of European laws.

It is of practical relevance that the determination of sound immissions and their assessment in terms of pollution control rights comply with the Technical Instructions on Noise (TA Lärm) in the case of installations subject and not subject to licensing.

The Ordinance on Installations Subject to Licensing (4th Federal Immission Control Ordinance) lists the installations subject to licensing according to sectors and types of installations. § 10 of the Federal Immission Control Act in combination with the 4th Federal Immission Control Ordinance distinguishes between installations subject to a formal licensing procedure and those only requiring a simplified procedure. The allocation to these types of procedure is decided by the placement in "Column 1" or "Column 2" of the annex, 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 in direct spatial or operational connection 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 prescribes the obligations of operators of an installation subject to licensing: According to para. 1, it "shall be constructed and operated in such a way that harmful effects on the environment which are avoidable with the use of the best available techniques are prevented" and "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" (the so-called “§26-measuring agencies”) "if there is reason to fear that harmful effects on the environment may be caused by the installation".

The current index of the agencies notified for the determination of emissions and immissions according to § 26 of the Federal Immission Control Act is available at www.resymesa.de.

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 thus relevant in the context of pollution control rights and building law. In the majority of the cases, we find an answer by deliberating whether technical measures would be 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" (like passenger cars and trucks), are by no means unconsidered in the context of installation noises. What has to be added to the installation noises are the noises from cars and vehicles on the company site, which have a function for the operation of an installation, especially of trucks. 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 immission control rights. The 32nd Federal Immission Control Ordinance (Ordinance on Equipment Noise Protection) gives details on this subject, which not only includes building machines but other equipment like lawn mowers, leaf blowers, garden vacuums, hedge trimmers or power generators. The 32nd Federal Immission Control Ordinance regulates a total of 57 machines and their noise emissions. Section 3 also prescribes the times during which these machines must not be operated in residential areas.

Furthermore, the General Administrative Regulation on the Protection from Building Noise – Noise Immissions – is to be applied.

Building law

Especially the Federal Building Code (Baugesetzbuch) and the Federal Land Utilization Ordinance (Baunutzungsverordnung) treated in section 2.1.2 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 Utilization Ordinance. Commercial enterprises are also permitted in special residential areas (§ 4a of the Federal Land Utilization 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) and in general residential areas (§ 4).

We also want to point out to § 15 para. 3 of the Federal Land Utilization Ordinance, which says that the permissibility of installations in building areas shall not only be assessed pursuant to procedural classifications of 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 have to be placed exclusively in an industrial area.

The possibility to structure building areas as presented in § 1 para. 4 of the Federal Land Utilization 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 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 immission-oriented and area-related sound power level (definition of the average radiated sound power per square metre area which impacts on a place of immission) 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 Utilization 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 Utilization Ordinance.