Building permits and noise: still an interesting question

Published: 5. October 2015

In this article, attorney Pia Pehrson presents the building permit process, issues regarding noise, coordination between the Swedish Environmental Code and the Swedish Planning and Building Act on these issues and, in particular, the new provisions which will apply starting on 1 June 2015 with respect to traffic noise in proximity to residential buildings. She also sheds light on many coordination problems which arise in this area of law.

(This article was published in Swedish in “Ny Juridik” 2015:3, Karnov Group.)

 

Background Since the 1972 reform of the Building Statute (1959:612) applicable at the time, the duty to obtain a building permit has applied throughout Sweden, inside and outside cities and densely populated areas, inside and outside any zoning plan. However, the conditions which must be met before building permits may or must be issued have changed over time. The conditions related to building permits inside the zoning plan have also changed indirectly through changes in how zoning plans must be formulated. In recent times, the effect that noise has on human health and well-being has in particular become a topical issue and the subject of new legislation focusing on, among other things, residential construction. In this article I will describe in summary how the rules regarding building permits are applied and the differences that exist between building permits inside and outside a zoning plan. I will then more thoroughly discuss primarily the most recent developments with respect to noise issues and how these developments have affected, and may be expected to affect, the processing of building permits and zoning plans.

Relevant legislation

The most important statue in the area is the Swedish Planning and Building Act (2010:900 (the “PBA”)), which entered into force in May 2011. The former PBA had at the time been in force since July 1987. The purpose behind the introduction of the new PBA was primarily to simplify and streamline the application of planning and building legislation, as a result of the over 250 amendment proposals which had been presented by the PBA Committee, the Swedish National Board of Housing, and the Building Process Inquiry, by making the rules simpler to apply and more clearly structured. In addition, the purpose was to achieve an increased environmental focus and more stringent supervision. However, the idea was not for the content of the PBA in substance to change to any great extent but, rather, the focus was to be placed on the application and review processes. One of the new features of the new PBA is, for example, that matters related to permits and advance rulings must be processed promptly and that decisions are to be issued within 10 weeks from the date the application is filed with the local planning authority. In addition, pursuant to Chapter 5, section 4 of the PBA, the municipality is obligated to decide with respect to zoning plan rulings not more than four months from the date on which a complete request has been filed.

Building permits inside and outside zoning plan areas

Pursuant to Chapter 9, section 2 of the PBA, a building permit is required for new construction, additions and, in certain cases, also for renovation and change of use of a building. In principle, Chapter 9, section 2 is neutral with respect to the issue of whether the contemplated measure is to be carried out inside or outside the zoning plan. The exception to this is found in 3 c of this section regarding changes to the external appearance of a building (e.g. through the use of roofing material or new façade colour), which only applies to buildings inside the zoning plan area. Moreover, a common misconception is that building permits are not necessary inside the zoning plan area provided the planned building or measure conforms to the provisions of the zoning plan. In actual fact, the Swedish National Board of Housing also requires building permits for a greater number of measures inside the zoning plan areas than outside the zoning plan.

The most important difference between the building permit process inside as opposed to outside the zoning plan area is according to which criteria the building permit application should be examined. In the simplest cases, building permits are to be granted for measures consistent with zoning plan provisions, which is perhaps the reason for the common perception that building permits are not required where zoning plans are in effect. If the zoning plan requires that new residential buildings within a certain block intended for housing will be 4.5 meters high and painted red, a building permit application to construct such a building must be granted. Of course the matter becomes more difficult when the building permit application relates to a measure that is not described in the zoning plan or even, to some extent, is in violation of its provisions. In such cases, building permits should nevertheless be granted where the desired measure meets some of the general requirements for consideration and building design for building permits available in PBA Chapters 2 and 8. (general fitness, etc.), where the measure is not directly contrary to the zoning plan and, furthermore, entails a deviation from the zoning plan which previously was approved in a review. A measure that diverges from the zoning plan may also be granted, in other cases, specifically where the deviation is consistent with the purpose of the zoning plan and the deviation is also minor or limited in scope and necessary for the area in question to be used or built upon in an appropriate manner.

Outside zoning plan areas, building permits must be issued where the planned measure fulfils the general requirements for consideration under Chapter 2 of the PBA with respect to building permits as well as planning. Such requirements include, among other things, consideration for the environment, financial growth, traffic aspects and aesthetic considerations. Also, as with building permits inside a zoning plan, Chapter 8 applies to the design of the construction works. The reason that there are many more considerations in the PBA which must be observed in connection with building permits outside zoning plan areas than inside a zoning plan area, is that the review of most of the considerations which must take place in connection with building permits outside the zoning plan have already been reviewed in connection with the drafting of the zoning plan.

In summary, the actual difference between a review of a building permit inside and outside a zoning plan is whether the review of the building permit, in light of other interests and values, is to take place with respect to each individual building permit application or whether the review is to take place more generally through the zoning plan.

New rules regarding environmental noise

Starting on 2 January 2015 (with respect to zoning plan matters) or 1 June 2015 (with respect to building permit matters), pursuant to Chapter 2, section 6a of the PBA, residential buildings must be placed on land suitable for residences taking into consideration the possibility to prevent harm to human health with respect to environmental noise. In addition, residential buildings must be designed and placed on land in a manner which is suitable taking in consideration environmental noise. In this respect, one can note that, since the law was enacted, Chapter 2, section 5 of the PBA has included a rule which states that buildings and construction works in connection with planning or building permits must be placed on land which is suitable taking into consideration the prevention of noise disturbances.

Government Bill 2013/14:128, Coordinated review of noise in accordance with the Environmental Code and the Planning and Building Act (Sw: Samordnad prövning av buller enligt miljöbalken och plan- och bygglagen), explains why there was nevertheless deemed to be a need to enact Chapter 2, section 6a of the PBA. As the Bill’s title suggests, the legislature saw a need to coordinate the handling of noise in the Swedish Environmental Code (1998:808 (the “EC”)), with the handling set forth in the PBA, since problems have arisen due to the fact that definitions of noise, and the harm incurred as a result of the noise do not correspond between the various regulatory frameworks. Through these changes, the legislature wanted over the long-term, to avoid cases in which existing activities at a location are forced into restrictions, or even forbidden, because residential buildings have been permitted so close to the activities that the noise level in proximity to these buildings is altogether too high. For example, the decisions M 1224-12 and M 4366-13 from 4 March 2013 and 29 April 2014 respectively by the Vaxjö Land and Environment Court (the “LEC”) can be noted. A business subject to a notification duty which had carried out activities for a time caused certain noise in the surrounding area. Following complaints from local residents, and because the municipality intended to plan for additional residential areas in the vicinity of the business, the municipality ordered the business to apply for permits under the Environmental Code. Upon review of the permit application, the LEC found (M 1224-12) that the location of the business was deficient taking in consideration the adjacent residential buildings and thus permits could not be issued. The municipality thereupon issued a prohibition against conducting the activities as well as precautionary measures related primarily to noise with respect to the activities until the date when the activities, subject to a conditional fine, were to end. The LEC upheld the prohibition (M 4366-13) and the fundamental aspects of the precautionary measures. The latter of the two cited judgments was modified to a certain extent by the Land and Environment Court of Appeal (the “LECA”), such that the prohibition against the activities would no longer apply, but the reason for this was only that the business operator had restricted its activities and taken measures to reduce disturbances. Thus, the LECA found that the issued precautionary measures should be sufficient to prevent excessive disturbances to the surrounding area.

In connection with the granting of permits for new construction or additions inside the zoning plan, which was the case in the above-cited judgments, the municipality would have been forced, where the building permits were applied for after 1 June 2015 (if building permits could be granted at all) to ensure that the building permit contained the environmental noise levels calculated for the façade of new building and any outdoor areas. A new rule set forth in Chapter 26, section 9a is thereafter to prevent any prohibition or injunction against a business operator which is based on noise disturbances in proximity to the new residential building, as long as the noise levels measured at the time of the issuance of the building permit are not exceeded.

The new provisions set forth in Chapter 2, section 6a of the PBA may be viewed in part as a specification of that which already applied pursuant to Chapter 2, section 5 of the PBA. It is made clear that environmental noise deserves particular consideration in connection with the review of building permits. Since 2 January 2015, the concept of environmental noise is also clarified in the PBA as noise which derives from road or rail traffic, industrial operations or airports. That which otherwise constitutes noise, or that which distinguishes noise from sound, is clarified in Government Bill 2013/14:128 as noise which, in short, is unwanted sound. The new definition of environmental noise in the PBA set forth in Chapter 1, section 4 is similar to the definition set forth in the Environmental Noise Regulation (2014:675). Since the regulation was promulgated under the EC, the introduction of the definition in the PBA constitutes a part of the work involved in coordinating the noise-related proceedings under the two regulatory regimes.

Harmful to human health

Another part of the coordination between the PBA and the EC is that Chapter 2 section 6a, as distinguished from, for example, Chapter 2 section 5 of the PBA, states that it is harm to human health which is to be prevented. This concept is new to the PBA, but occurs frequently in the EC. The definition of what constitutes harm to human health is also set forth in Chapter 2, section 6a and is taken from Chapter 9, section 3 of the EC. The Government states in Government Bill 213/14:128 that the discrepancy which previously existed between how human health is taken into consideration under the PBA (suitable placement and design taking health into consideration) and the EC (no risk of harm to human health) has caused difficulties in interpretation. However, since the definition is set forth in Chapter 2, section 6a of the PBA there is no doubt that the definition is intended to be applied only with respect to the placement and design of residences in relation to environmental noise and, thus, the discrepancy remains with respect to all other types of disturbances which may occur and with respect to which conflicts between the EC and the PBA may arise.

New rules regarding traffic noise

Starting 1 June 2015, the Traffic Noise (in proximity to residential buildings) Regulation (2015: 216) will also apply (the “Traffic Noise Regulation”). The Traffic Noise Regulation is intended to be applied both to matters under the EC and in order to determine which noise levels entail a suitable placement of residences under Chapter 2, section 6a of the PBA. The Traffic Noise Regulation also contains guidelines for which sound levels from various traffic sources should not be exceeded in relation to residences’ façades and outside areas, as well as provisions regarding so-called quiet sides, in the event that the sound levels are too high.

The fact that the Traffic Noise Regulation expressly includes standards which, according to the regulation, must be applied in certain cases, for example in connection with the review of building permits (outside the zoning plan) and in connection with planning, conflicts with the LECA’s line of reasoning that national standards as conditions for business operations are not to be issued (see LECA 2009:2). The LECA also criticised this particular ground in its consultation response to Government Bill 2013/14:128. How the Traffic Noise Regulation is to be applied in conjunction with a review of a permit application for environmentally hazardous business operations is not stated in the regulation or the EC. Chapter 9, section 12 of the EC, under which the regulation is promulgated, is a provision which generally permits the government to issue regulations required to protect against harm to human health.

In connection with a review of a building permit outside a zoning plan area after 1 June 2015, the rule set forth in section 3 of Traffic Noise Regulation must also, for example, be applied. It states that noise from railway traffic should not exceed a 55 dBA equivalent sound level measured at a residential building’s façade. There are no provisions in the Traffic Noise Regulation regarding the grounds for exceptions to the standards. Government Bill 2013/14:128 provides perhaps certain guidance in that there are references therein that the Traffic Noise Regulation should be promulgated with the point of departure being based on earlier preparatory works’ recommended noise levels and reasons for exceptions (see also the judgment referred to below, M 4606-14). The foregoing could mean that exceptions to the standards are to apply, for example, in connection with the densification of cities and in connection with residential construction in the vicinity of collective traffic routes. At the same time, the structure of the Traffic Noise Regulation’s, with the inclusion of residences with quiet sides and special rules for small homes indicates consideration has been given directly in the statutory text to the statements in the earlier preparatory works. These exceptions in the regulation resemble much of what previously applied through recommendations and statements related to the preparatory works, even if they are clarified and nothing per se is stated regarding the densification of cities. The Traffic Noise Regulation will thus only apply to new residences, which were built after 1 June 2015. However, with respect to existing buildings the coordination work related to the PBA may also lead to a clearer application of the law. In the M 4606-14 judgment of the Växjö LEC of 5 May 2015, the LEC refers to Government Bill 213/14:128 to confirm that the exceptions from the noise recommendations applicable under the so-called Government Bill on Infrastructure: 2012/13:25 shall continue to apply with respect to existing buildings.

Perhaps some brief comments should be made regarding the concepts of “equivalent” and “maximum” sound levels as well as dBA which are used here and in the law. “Equivalent sound level” means an average sound level over time. “Maximum sound level” on the other hand relates to temporary noise, such as for example bangs or a particular vehicle traveling at high speed. The unit of measurement “dBA” describes, in somewhat simplified form, the loudness as perceived by humans, where 0 dBA is the lowest audible sound level at a frequency of 1 kHz. However, the scale is not linear, so that 40 dBA means twice as loud as 20 dBA, but rather logarithmic, so that an increase of 3 dBA corresponds to a doubling of the noise level.

As an example of how the Traffic Noise Regulation can be applied, one can imagine that a municipality drafting a new zoning plan for a residential area in proximity to a busy roadway. In this case, pursuant to Chapter 2, section 6a of the PBA, harm to human health due to environmental noise must be avoided. Prior to drafting the zoning plan, the municipality must estimate which sound levels will be measured at the façades of the planned buildings. With respect to noise other than traffic noise, the municipality is referred to the Swedish National Board of Housing’s guidelines for assessment of which noise levels should be tolerated in proximity to residences but, for the noise from the busy roadway, the Traffic Noise Regulation applies. If the municipality plans residences larger than 35m² in the zoning plan, the equivalent noise levels should not exceed 55 dBA at the façade. In the event that the noise level exceeds 55 dBA at the façade, the building should have a so-called “quiet side”, in other words at least half of the rooms must be facing towards a side where a 55 dBA equivalent sound level is not exceeded and at least half of the rooms are facing a side where a maximum (instantaneous) noise level of 70 dBA is not exceeded at night.

Interestingly, nothing is said in the Traffic Noise Regulation regarding the fact that the rooms facing the side with a maximum 55 dBA noise level at the façade must be the same rooms as where the maximum sound level at night does not exceed 70 dBA. On the contrary, the rule regarding quiet sides (section 4 of the Traffic Noise Regulation) is worded so that such situations must have been foreseen and intended where half of the rooms must have an equivalent sound level of 55 dBA, but a maximum sound level exceeding 70 dBA, at the same time as other rooms have an equivalent sound level exceeding 55 dBA, but a maximum sound level which never exceeds 70 dBA at night. Such locations are probably fairly rare, but it may of course occur that a residential building has one side facing a busy roadway where the equivalent noise level is above 55 dBA, at the same time as another side faces a roadway with light traffic but which is used as an access road for the emergency services. The latter roadway thus most likely has a low equivalent sound level, even if the sound level on occasion may be very loud, at the same time as the busy roadway probably has an equivalent sound level exceeding 55 dBA but never a maximum sound level at night exceeding 70 dBA. In this situation, the application of the Traffic Noise Regulation would permit housing construction, provided of course that the recommended noise levels are not exceeded as a result of noise from sources other than road traffic.

The importance of a comprehensive noise study

In conclusion, the importance of a comprehensive noise study will also be addressed in brief. On 26 June 2015, the Land and Environment Court of Appeal handed down a decision in a case (P 2127-15) in which a zoning plan was invalidated as a result of the fact that the noise issue was not sufficiently studied to enable an assessment of whether reasonable consideration had been given to existing operations. The Land and Environmental Court of Appeal held that in order to be able to assess whether reasonable consideration has been given to existing circumstances, one must possess sufficient background information regarding the issue of the plan’s effect on the environment. Thus, the case underlines the importance of a zoning plan being based on sufficiently proper background information in order for an appropriate assessment to be carried out.

Concluding thoughts

The coordination between the EC and the PBA and the codification of noise-related case law which has taken place based on changes to the two acts, as well as under the Traffic Noise Regulation, are reflected through guidance work underway at the National Housing Board and the Swedish Environmental Protection Agency. Authorities working in the sector must develop coordinated guidelines for the handling of noise issues, which should lead to a clearer and simpler application of the law. However, the guidelines published in April 2015 leave many questions unanswered.

The current efforts by the legislature in the area of planning and construction to simplify and clarify and, above all, coordinate the two regulatory regimes is awaited in many quarters. At the same time, it is easy to condemn measures as insufficient and too narrow. The Traffic Noise Regulation, which will continue to be the only source of law with anything close to clear rules regarding noise, only applies to noise from roadway traffic, and only to new measures and to residential buildings. For all other types of disruptions, with respect to existing conditions and for other types of buildings, the same unclear situation remains as before. Additionally, as noted above, the Traffic Noise Regulation is really a set of guidelines and not strict acquirements.

In addition, a major concern since the new Planning and Building Act came into force in 2011 has been the numerous changes implemented since then. A number of proceedings regarding planning and building matters are still taking place under the old Planning and Building Act (1987:10) since the new PBA has no retroactive effect. Only recently have the courts handed down decisions containing interpretations of rules in the new PBA. Nevertheless, the risk is that neither of these decisions will provide any assistance to municipalities or developers in their activities, since many of the major changes to the PBA also render the new decisions obsolete as soon as they are issued. The same will apply to the changes described in this article, in which the clarifications regarding application will not reach the courts for several years, that is assuming that the PBA has not changed by then. Considering that the aim of the 2011 PBA reform was precisely to simplify and streamline the application of planning and building rules, this is of course regrettable. In this context, for example, mentioned can be made of the Government’s new Government Bill 2014/15:122, New steps for an efficient planning and building act and increased legal certainty for business operators in relation to environmental noise (Sw: Nya steg för en effektivare plan- och bygglag och ökad rättssäkerhet för verksamhetsutövare vid omgivningsbuller) (28 May 2015). The proposed legislation makes a further attempt to clarify the noise problem. The aim is for courts and authorities not to be permitted to impose stricter noise requirements on business operators, for example existing industries, in new conditions in permits for environmentally hazardous operations, than that which follows from the estimates contained in the zoning plan or building permits. The scope of application, however, is once again narrow.

Consequently, there is a significant amount of work remaining before an easily foreseeable and easy-to-apply governance of residential construction in relation to other operations is in place. Most of the problems which previously existed remain and the solutions, that is the statements in the preparatory works reiterated by the courts, are essentially the same as before. At the same time, frequent changes to the PBA entail that the courts are never given the opportunity to interpret the legislature’s intention behind the legal rules while they are still relevant. Furthermore, it is extremely difficult for the municipal building permit officials, as well as planning departments, to keep up with this quickly-changing legal landscape. Guidance from the National Board of Housing is slow, and there is no time to learn the most recent legislative changes and procedures before it is once again time for further changes in the legislation.

To some extent the most recently adopted changes to the laws and the regulation work will nonetheless entail that the application of the rules will be clearer and that at least some cases of conflict will be avoided. In a few years, when the regulatory regimes have had an impact on municipal planning and the processing of building permits, as well as court case law, the rules may be evaluated more thoroughly. Until this time, it will be a challenge from a legal perspective for both developers and governing public authorities.

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Pia Pehrson, Attorney and Partner
This article was published in Swedish in “Ny Juridik” D 2015:3, Karnov Group.

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