TRAFFIC NOISE
3.1.1 Legal foundations

Active noise protection at the source is based among others on regulations on the nature and operation of vehicles and craft, following almost exclusively the German Road Traffic Act (Straßenverkehrsgesetz/StVG) with consideration of § 38 of the Federal Immission Control Act. The Road Traffic Act allows for the issuing of ordinances and general administrative regulations. § 30 (1) of the Road Traffic Regulation (Straßenverkehrsordnung/StVO) and § 49 of the Road Traffic Licensing Regulation (Straßenverkehrszulassungsordnung/StVZO) in accordance with § 38 of the Federal Immission Control Act lay down that vehicles must be conditioned and "operated in such a manner that any avoidable emissions are prevented and any unavoidable emissions are kept to a minimum".

On the basis of § 6, the Road Traffic Regulation requires and allows for the prohibition of unnecessary noise when using a vehicle, the limitation of the use of acoustic signals as well as traffic restrictions, which can be ordered by the road traffic authorities for the protection of the resident population from noise and exhaust gases (e.g. in health resorts or in the proximity of hospitals). In addition to this, the road traffic authorities in accordance with the municipality can give the necessary orders for the protection of the population from noise and exhaust gases or for supporting structured urban development measures (§ 45 of the Road Traffic Regulation). There is still a scope of possibilities in this field.

Besides the essential planning principle in § 50 of the Federal Immission Control Act, the noise control requirements in Part IV of the Federal Immission Control Act have to be considered:

§ 38 (Nature and Operation of Vehicles and Craft) lays down for example that cars and vehicles "must be operated in such a manner that any avoidable emissions are prevented and any unavoidable emissions are kept to a minimum" at normal operation.

According to § 41 (Roads and Rail Tracks), "provision shall be made in the case of any construction or major alteration of public roads as well as of railways, magnetic levitation trains and tramways that this does not involve any harmful effects on the environment caused by traffic noise which is avoidable with the use of the best available techniques". This "shall not apply where the costs of the protective measure would not be commensurate with the desired protection goal". Active noise protection can also be realized through low-noise road surfaces, noise protection barriers and walls or through grinding the rail surface for example.

§ 42 regulates the compensation for sound-proofing measures at buildings (passive noise protection).

§ 43 authorizes the German government to adopt by ordinance such provisions as are required for the implementation of §§ 41 and 42. This includes the definition of immission limit values "which must not be exceeded so as to warrant the protection of the neighbourhood from any harmful effects on the environment caused by noise, as well as the procedure to be used to measure emissions or immissions", in case of the construction or major alteration of public roads and railways. The corresponding Traffic Noise Ordinance (16th Federal Immission Control Ordinance) was issued in June 1990. It replaces the meanwhile abandoned intention to regulate this matter in a traffic noise protection act of its own.

In combination with the 16th Federal Immission Control Ordinance, the Federal Immission Control Act establishes a legal claim for people to be protected from traffic noise in case of the construction or major alteration of transport routes.

The protection covers not only the interior but also the exterior living area (like balconies, terraces), which is equally worthy of protection during the day as it is suitable for habitation.

§ 43 of the Federal Immission Control Act authorizes the Federal Government to adopt by ordinance "specific technical requirements regarding the construction of roads, railways ... and tramways" and "the type and extent of any sound-proofing measures at buildings needed to protect the environment from any harmful effects caused by noise".

The necessity for noise protection measures in case of the construction or major alteration of federal highways of public easement also arises from the requirements of § 17 of the Federal Highway Act (Bundesfernstraßengesetz) in the context of the plan approval procedure defined therein. According to § 18 of the General Railway Act (Allgemeines Eisenbahngesetz), the same applies to the construction or alteration of railway operating facilities.

The Guidelines for Traffic Noise Protection at Federal Highways of Public Easement (VLärmSchR 97) determine action values for acoustic treatment measures at existing A-roads. Several Länder, including Baden-Württemberg, have adopted these guidelines and apply them to state roads of their easement; they have also recommended that the district and local authorities apply them to their own roads as well.

Road planning in the context of urban land-use planning is subject to the requirements of § 1 para. 5 of the Federal Building Code, which stipulates that environmental concerns, including noise protection, have to be considered. According to § 2 para. 4 of the Federal Building Code, an environmental impact assessment must therefore be carried out in the course of the procedure. Its purpose is to determine, describe and assess the presumed significant environmental impacts. For areas with exceedances of the limit values of the 16th Federal Immission Control Ordinance for the development, designations for noise protection measures must be set according to § 9 para. 1 (24) of the Federal Building Code. Such a designation comes at the end of acoustic analyses, whose purpose is to bring about predominantly active noise protection.

Besides the field of urban land-use planning, the Environmental Impact Assessment Act (Gesetz über die Umweltverträglichkeitsprüfung/UVPG) prescribes the obligation to carry out an environmental impact assessment for projects as listed in Annex 1 to the Act, if the characteristics to determine their nature are met. In the context of road and railway noise, this also covers traffic projects like:

• the construction and alteration of federal motorways or other federal highways,
• the construction and alteration of railway operating facilities or
• the construction and alteration of track routes for trams, elevated urban railways, underground railways or suspension railways, including the associated operating facilities.