Noise and noise pollution - Legitimate tranquility - Decryption - UFC-Que Choisir
© R. KLUBA/REALegitimate tranquility
Published: 22/10/2020 Share on FacebookShare on Twitter>Neighborhood noise, noise pollution from commercial, artisanal or industrial activities... Damage caused by a construction site, an airport, a wind farm... Such inconveniences are likely to harm human health, or even damage their heritage. Fortunately, the regulations are there which allow everyone to assert their rights and have them respected. If noises or other nuisances disturb your peace, this decryption is for you.
CONTENTSSound level meter
Noise, even at a low sound level for a prolonged period, can have harmful effects on health (stress, insomnia, etc.). Disturbances vary from individual to individual and by context. They depend on the duration of the noise, its intensity and its repetition over time. Sleep being fundamental for the individual, nocturnal noises are the most to be feared for health: irritability, anxiety, fatigue, reduced alertness and even cardiovascular disorders and increased blood pressure can occur. In terms of noise from activities, particularly from businesses, craft workshops or industrial activities, the search for a possible violation involves carrying out acoustic measurements using a device called a sound level meter.
Noise must be measured
The disturbance caused by noise is not only linked to its own level of intensity, but also to the sound environment in which it appears. To take these two parameters into account, the agent in charge of the control measures the “overall emergence”, that is to say the difference between the level of ambient noise, including the noise in question, and the level of residual noise ( sound level in the absence of the noise in question).
Noise from commercial, industrial or craft activities must not exceed ambient noise by more than 5 dB(A) during the day (from 7 a.m. to 10 p.m.) and 3 dB(A) at night (article R. 1336-7, public health code). Some noises, although low intensity, are nevertheless annoying because they are very high or very low. This is particularly the case for that which emanates from refrigeration compressors, fans or air conditioners. “Spectral emergence” makes it possible to detect them. It corresponds to the difference between the ambient noise level, comprising the particular noise in a given frequency (in Hz), and the residual noise level in the same frequency.
Good to know. There is no violation when the measured ambient noise level, including the particular noise, does not exceed 25 dB(A) if the measurement is made at inside the main rooms of a dwelling, windows open or closed, or 30 dB(A) in other cases (article R. 1336-6, public health code).
Our advice To have a measurement carried out free of charge, contact the hygiene services of the town hall or the regional health agency, they are equipped with approved devices to measure the noise level .
Priority to the first installed. In principle, an action for abnormal neighborhood disturbance is not possible if your noisy neighbor was there before you. Indeed, there is no need for compensation if the disturbing activity already existed at the time when the victim of the nuisance acquired his home, or even when this work was already planned and known publicly (article L. 112-16, Code of Construction and Housing). The judges refused to compensate a person who, before the construction of his house but after a declaration of public utility and a public inquiry, was able to know the characteristics of an expressway project and the nuisances that -ci was likely to generate (administrative court of appeal of Nantes, December 7, 1994, n° 93NT00673). On the other hand, the pre-existence argument does not apply if the operating conditions have changed and the noise has increased. For example if the activity has developed a lot in recent months.
The measurement is time-weighted
The emergence limit values are normally 5 dB(A) during the day (from 7 a.m. to 10 p.m.) and 3 dB(A) at night (from 10 p.m. to 7 a.m.). Added to this is a fix based on the cumulative duration of occurrence of the particular noise over a day. The longer the duration of the noise, the less the correction is important (art. R. 1336-7, public health code). For example, a noise that lasts between 1 and 5 minutes will be weighted by 5 dB(A), while another that lasts more than 8 hours will not be corrected.
When professional activities disturb
The sound level of music is regulated
Discotheques, "karaoke" restaurants, piano bars... Establishments open to the public and " regularly broadcasting amplified music" are subject to strict requirements aimed at reconciling the operation of these places with respect for the right to tranquility of local residents and the prevention of risks related to exposure to high noise levels (art. R. 571-25 to R. 571-28 and R. 571-96, environmental code). Inside, the average noise level is, since a decree of August 7, 2017, limited to 103 dB(A) against 105 dB(A) previously and the maximum level at 118 dB(A) against 120 dB(A) previously . These regulations apply to establishments whose main activity is the distribution of music, as well as to those which have another assignment (multipurpose halls, bars, etc.) but which regularly broadcast it. It has also been extended to open places such as outdoor festivals. With regard to closed places, it concerns cinemas, meeting rooms, etc. On the other hand, are not concerned the rooms whose activity is reserved for the teaching of music and dance.
The operator of the premises is required to carry out a study of the impact of noise pollution (EINS) including an acoustic measurement, as well as a description of the measures taken to limit the noise level and emergences. This study must be updated each time the premises or the sound system are modified. Which, in practice, is not always the case. It must be able to be presented at any time to the agents in charge of the control. Failing this, the operator incurs a fine of €1,500 (€7,500 for a legal person), the seizure of the equipment, the obligation to carry out insulation work, or even the temporary closure of its establishment.
Good to know. The operator must ensure that the emergence value set by the regulations is not exceeded, whether or not the establishments are contiguous with residential premises.
Schedules for cafes, bars and restaurants
Each prefect issues a decree setting the opening and closing times for drinking establishments in his department. By virtue of his police powers in his municipality, the mayor is likely, due to particular local circumstances, to accentuate the terms of the prefectural decree (with less late closing times for example, or a ban for certain establishments to sell alcohol during such time slots, a ban on consuming alcohol at certain times and within a particular geographical area, etc.). The operator must also take care not to harm the tranquility of the neighborhood and not to disturb public order (noise at night, fights between customers, etc.). Inquire at the town hall to find out if the schedules are well respected. If the inconvenience is excessive, contact a bailiff to come and draw up a report.
In the event of disturbances, the mayor commits a fault which engages the responsibility of the municipality if he does not take any measure aimed at putting an end to them (administrative court of Douai, October 15, 2009, n° 08DA01500). In the event of failure of the municipal authority, the prefect is able to use his power of substitution and intervene in place of the mayor (article L. 2215-1, general code of local authorities). Do not hesitate to address a letter to your mayor.
Good to know. If the nuisance persists, the mayor can ask the prefect for the temporary administrative closure of an establishment for disturbing public peace.
Deliveries as soon as possible
Delivery management is tricky in urban areas. It is necessary to reconcile the constraints related to the parking of trucks during their delivery and the resulting noise pollution. Go to the town hall to find out if the mayor has issued an order. For example, in Paris, deliveries are authorized:
If there is no by-law in the municipality, meet the mayor to ask him to take one, in particular to set the conditions and delivery times.
You can also initiate a civil action for abnormal neighborhood disturbance. The Monoprix brand, for example, was condemned by the judges to reimburse the double-glazed windows that a local resident had been obliged to install to protect against noise (judgment of the Court of Cassation, 2e < /sup>civil chamber, February 11, 1999, appeal no. 97-13.812). The Lidl company was forced to build a soundproof unloading hall (judgment of the Court of Cassation, 3th Civil Chamber, November 4, 2004, appeal no. 03-13.142).
Our advice You are surely not the only victim. Get together in association with other residents or at least three or four neighbours, you will have more weight to assert your rights and will be able to share certain costs because of your joint action (expert, bailiff, lawyer). Attempt, first, an amicable resolution. Go see the manager of the business whose deliveries bother you. He can agree to contact the town hall so that the cobblestones of the street are covered with bitumen and that the pallet truck makes less noise on the road, or require the driver to cut his music when he unloads, ask the company of delivery to provide two delivery people so that the unloading is faster, etc. If this fails, consider legal action against the manager for abnormal neighborhood disturbance. This action is possible even if the professional complies with the regulations in force. Beforehand, collect evidence by having a bailiff's report drawn up; it will be a way to preserve evidence despite the volatility of the noise. The usher thus measures the emergence of noise, specifies the timetable, the floor covering, describes everything he sees.
You can take action against odors
When it comes to odors, nothing is specifically provided for by law, but you can take action on the basis of abnormal neighborhood disturbances. Thus, a restaurateur was sentenced for abnormal disturbance of the neighborhood due to odors perceptible upstairs due to poor layout of the premises (insufficient hood filters, ventilation carried out in the opposite direction), associated with noise pollution due to nighttime operation of the restaurant and noise from the extractor and compressor (judgment of the Court of Cassation, 3th Civil Chamber, June 11, 1997, appeal no. 95-10.152). Similarly, a car paint shop was sentenced for neighborhood disturbance due to hydrocarbon odors and noise related to its activity. However, the mechanic had obtained the necessary administrative authorizations for his installation. The judges took into account the particular circumstances. In particular, they held that the professional was installed in an urban area and that it was the only industrial installations in this residential area (judgment of the Court of Cassation, 3th Civil Chamber, 22 May 1997, appeal no. 93-20.957).
Business at the foot of the building: there are rules
In a building, the activity must respect the rules of co-ownership and more particularly the clause specifying the use of the said building. Most often the use of the property is mixed (residential and commercial). However, the regulations may limit or prohibit certain activities (restaurants, fishmongers, dry cleaners, etc.) or, conversely, provide a list of the only authorized activities. It can therefore only be indicative. The regulations may also allow all businesses, provided that they comply with certain rules concerning their location (only on the ground floor, for example) or their mode of operation (no on-site manufacturing). Be aware that any co-owner can take legal action to obtain the cessation of the activity for abnormal neighborhood disturbance, or even obtain damages, even if the activity respects the co-ownership regulations of the building in which it is located. (judgment of the Court of Cassation, 3th ch. Civil, February 29, 2012, appeal no. 10-28.618).
The seller must not hide anything
If the buyer manages to prove that the seller has concealed information to convince him to buy, he can claim damages, or even have the sale canceled for “dol” (article 1137 et seq., civil code). Fraud is a ruse, a deception used to lead you to conclude the contract. It can also be constituted by the fact of withholding information. This is called “deceitful reticence”. It is on this basis that an owner obtained €30,000 in damages from an SCI. The seller was perfectly aware that the accommodations he had built were in the vicinity of a company causing significant olfactory and noise pollution (manufacture and packaging of essential oils). However, when the buyer questioned him about the odors coming from this company, he asked him to contact the municipal town planning services (judgment of the Court of Cassation, 3e civil ch., May 25, 2011, appeal no. 09-16.677).
Noisy construction sites
Public works or construction sites must not cause excessive noise "of a nature to affect the tranquility of the neighborhood or human health" (Article R 1334-31, public health code). But construction sites being by nature noisy activities, the threat to the tranquility of the neighborhood will only be recognized in certain cases:
The contractor must therefore take all precautions to limit noise and comply with the conditions of use or operation of equipment. He must also respect any municipal or prefectural decrees on site noise.
Ask the town hall (or the prefecture) to find out the exact conditions for carrying out the work and the authorized times. Municipal (or prefectural) decrees specific to construction site noise may impose stricter rules than what the regulations provide (for example, a reduced time slot for certain particularly noisy machines such as pneumatic drills). If they are not respected, ask the mayor to send a sworn municipal officer to the site to verify the situation. Abnormal neighborhood disturbance can be recognized by judges, even if the site is perfectly in order (Court of Cassation, 2th civil ch., April 24, 1989, appeal no. 87-16.696).
Good to know. If major work is planned near your home, the company in charge of the operations will certainly distribute information (municipal bulletin, information panel on the site or district meeting). You will thus have a precise idea of the inconvenience caused, the measures taken by the contractor to reduce nuisance to local residents and the date on which the work will be completed.
Airports: aid for soundproofing housing
Residents living near a high-traffic airport who experience real inconvenience noted by a noise annoyance plan (PGS) are entitled to financial aid intended to installing soundproofing in their homes. This plan comprises three zones, zone I being that where the noise level is the strongest. This aid only concerns residents of the 12 largest French airports who live in an area covered by a PGS, i.e. Bordeaux-Mérignac, Beauvais-Tillé, Lyon-Saint-Exupéry, Marseille-Provence, Bâle- Mulhouse, Nantes-Atlantique, Nice-Côte d'Azur, Paris-Charles-de-Gaulle, Paris-Le Bourget, Paris-Orly, Strasbourg-Entzheim and Toulouse-Blagnac.
To obtain a subsidy, you must complete a “soundproofing aid request” form and send it to the airport operator. After written agreement from the latter, you must have an acoustic study carried out by a specialized design office and then send it to the airport. The expert lists the solutions to reduce noise and estimates the cost of the work. It is up to you to request quotes from the companies of your choice and then send them to the airport operator. The aid amounts in principle to 80% of the price of the services provided. It can reach 90%, or even 100% of expenses, if you have low resources.
Note. Carrying out the acoustic study is eligible for financial assistance, and like soundproofing work, it can be reimbursed. Please note that the resident of the airport must carry out the work within a maximum period of 2 years from the notification of the allocation of the aid. It is only once the work has been carried out and paid for that the aid is paid to him. Provided of course that you have taken care to send all supporting documents (paid invoices) to the operator. However, at the start of construction, local residents entitled to an aid rate of more than 80% may receive, at their request, an advance on the aid in order to pay installments to companies (Article R. 571-87, environmental code).
Our advice Do not carry out the acoustic study or the sound insulation work before having obtained the express authorization of the operator of the aerodrome concerned. Otherwise, you will not be able to get reimbursed.
Installations classified in the viewfinder
Factories, workshops, depots and other sites likely to generate dangers or inconveniences for the convenience of the neighborhood, for health, safety, the environment or public health are subject to extremely strict regulations specific to each activity (chemicals, textiles, agri-food, etc.), under “installations classified for the protection of the environment” (ICPE).
These activities are listed in a nomenclature which subjects them to an authorization, registration or declaration system depending on the importance of the risks or inconveniences they may cause (articles L. 511-1 and s., environmental code).
If you are bothered by noises or smells coming from classified installations, send a letter of complaint to the inspection services for classified installations within the Dreal, regional directorate for the environment, development and housing (excluding farms), or the DDPP, departmental directorate for the protection of populations (farms). A health inspector will be delegated on site to verify the company's compliance with laws and regulations.
Wind turbines abound
Wind power is a growing source of electrical energy production in France. By its power, the French wind farm now ranks 4th in Europe behind Spain, Germany and the United Kingdom. This growth is not without impact on local residents. Considered as installations classified for the protection of the environment (ICPE), they are subject to strict regulations as to their location.
Non-compliance with town planning rules. In the event of a breach of town planning rules attributable to a wind turbine installation project (building permit, public inquiry, impact study), local residents may initiate an administrative appeal to prevent the project implementation. The Council of State thus canceled a building permit for two 120 m high wind turbines for safety reasons (Judgment of the Council of State, July 27, 2009, No. 317060). In another case, on the contrary, the administrative court of appeal of Lyon chose to confirm the building permit for a park of 12 wind turbines 98 m high. The judges considered that "the project [...] fits, without affecting it, in a site crossed by the TGV Méditerranée line and the A7 motorway where widespread urbanization has largely developed both in terms of 'housing than craft and industrial activities' (administrative court of appeal of Lyon, February 3, 2004, no. 03LY01697).
Good to know. Wind turbines with mast heights exceeding 50 m must be located 500 m away from dwellings (article L. 515-44, environmental code).
Abnormal neighborhood disturbance. The case law is not yet clearly established as to the recognition of wind turbines as an abnormal neighborhood disturbance. Some judges indeed refuse to recognize the abnormality, "No one is guaranteed to preserve his environment" (judgment of the Court of Cassation, 3th civil chamber, October 21, 2009, appeal n° 08 -16.692), when others do. The courts ordered a subsidiary of GDF Suez to demolish 10 wind turbines located near a castle classified as a historic monument. The judges awarded damages to the owners of the castle due in particular to aesthetic damage (denaturation of the landscape), auditory damage (purring and whistling) and visual damage (white or red flashes every two seconds and stroboscopic phenomena). These, “completely unusual, permanent and quickly unbearable in nature, create damage that goes beyond normal neighborhood inconveniences” (judgment of the Tribunal de Grande Instance of Montpellier, September 17, 2013, No. 11/04549).
On appeal, the judges confirmed the abnormal disturbance of the neighborhood and the award of damages, but they declared themselves incompetent to decide on the demolition of the wind turbines (judgment of the Montpellier Court of Appeal, July 28 2015, no. 13/06957). Finally, the Court of Cassation confirmed that the judicial judge could not order the dismantling and removal of the wind turbines on the basis of abnormal neighborhood disturbances because he did not have jurisdiction. The fact that wind turbines are subject to the classified installations regime implies the jurisdiction of the administrative judge (judgment of the Court of Cassation, 3th civil chamber, January 25, 2017, appeal no. 15-25.526 ).
As a result, an action for abnormal neighborhood disturbance is conceivable and may lead to the award of damages in compensation for the damage suffered or even to the obligation to take measures to put an end to the nuisance (for example works), but not the dismantling of wind turbines. It is only possible to obtain this dismantling before the administrative judge if the installation does not comply with the regulations.
Good to know. In order to help the development of wind power, it was decided to remove a level of jurisdiction and therefore of recourse in the event of a dispute: the administrative courts of appeal are now competent to judge in first and last resort (decree no. 2018-1054, JO of 29 Nov. 2018).
Relay antennas, two competent judges
Even if it is installed according to the rules, judges sometimes recognize the abnormal neighborhood disturbance caused by a relay antenna and award damages. On the other hand, only the administrative judge is authorized to order its dismantling (judgment of the Court of Cassation, 3th civil chamber, December 19, 2012, appeal no. 11-23.566). Please note that the judge does not welcome reasoning based on potential health risks or on the precautionary principle. To obtain a conviction for abnormal neighborhood disturbance, it is therefore necessary to rely on another argument: visual damage, depreciation of the property... It must be demonstrated that the nuisance suffered exceeds the normal neighborhood inconveniences, this nuisance must therefore be significant.
Good to know. To install a relay antenna on the roof of a building, the authorization of the general meeting of co-owners is necessary. The decision requires a majority vote of all the co-owners (article 25). If it is not reached and the draft resolution has received at least one third of the votes, the meeting can vote in a second immediate vote by simple majority (article 24).
They won (or not)
Sanibroyeur too noisy
A couple is carrying out work to make an attic habitable. The owners of the apartment below complain of noise pollution and request, among other things, the removal of the sanibroyeur. The judges of the Court of Appeal rejected their request, holding that the noise emitted, if it is excessive, can be reduced. The acoustics expert's report shows that the equipment produces a level of 40 dB(A) in the neighbours' kitchen and 35.7 dB(A) in their dining room. And that this noise, if it is excessive, can be reduced by reinforcing the wastewater descent with plasterboard and 30 mm of mineral fibre. The Court of Cassation, called upon to rule, reaffirms that no one should cause a disturbance to others exceeding the normal inconveniences of the neighborhood and criticizes the Court of Appeal for not having ordered the cessation of the disturbance which it noted, i.e. carrying out the work recommended by the expert. As a result, the case must be retried (Cass., 3th civil chamber, October 5, 2017, No. 16-21087).
A tenant causes disturbances
As soon as a landlord is informed of neighborhood disturbances caused by his tenant, he must act by reminding him of the obligation to use the rented premises peacefully and possibly bring an action for termination of the lease. Failing this, its liability may be retained. In this case, a tenant informs a lessor of the noise pollution he is experiencing and which is caused by an occupant of the building. The lessor sends the author of the disturbance three registered letters. Without effect. The tenant decides to sue the lessor to remedy the abnormal neighborhood disturbances caused by the tenant and to be ordered to pay damages. The Court of Appeal rejected this request, holding that the lessor, by sending the registered letters to his tenant, carried out appropriate and sufficient diligence and that he cannot be blamed for not having initiated random legal proceedings aimed at terminate the lease. The Court of Cassation does not agree with this opinion. For her, the lessor is liable to the tenant for disturbances of enjoyment caused by other tenants or occupants of the building and is only exonerated from this liability in the event of force majeure (Court of Cassation, 3e civil ch., March 8, 2018, n° 17-12536).
Expert opinion: Christophe Sanson, lawyer at the Hauts-de-Seine bar (92)
“In an increasingly individualistic society, noises related to human behavior are difficult to accept by citizens . Noisy domestic appliances – boilers, air conditioners, boosters, swimming pool pumps, etc. – are the source of many disputes. If the attempt at amicable resolution yields nothing, you have to go to the district court, armed with evidence such as a bailiff's report, testimonies, to obtain a court decision in about 6 months so that a term be confused. Another frequent source of noise pollution is the change of the top of the floor covering by its neighbour, and consequently the degradation of acoustic insulation. These cases often require recourse to the tribunal de grande instance to request the appointment of an expert in summary proceedings. The latter will draw up a report, within 6 months to 1 year, comparing the impact noises recorded in an apartment taken as a reference and in which the neighbor has not changed the covering, and the noises recorded in the apartment. litigious apartment. On this basis, an amicable settlement can be found. Otherwise, it will be necessary to sue to obtain a decision from the trial judges. They will generally rely, to condemn the author of the nuisance, on the violation of the co-ownership regulations or on the notion of abnormal neighborhood disturbance. Allow at least an additional year for this decision to be rendered.”
