The issue of defense against traffic noise emissions through private law regulation, especially against noise caused by heavy traffic, is still a very current topic. An example can be the recent decision of the District Court for Prague 1 regarding noise emissions caused by heavy traffic in V Holešovičkách Street.
In this case, the court accepted the lawsuit of the property owners in the vicinity of the problematic street and ordered the owner of the road to achieve a reduction in emissions within one year. The District Court for Prague 1 ruled on this lawsuit for the second time. Even in the first case, he agreed with the complainants, but the appeals court changed his decision, stating that the court unreasonably prioritized the rights of individuals over the interests of the entire municipality. However, an extraordinary appeal was filed against this decision, on the basis of which it was annulled by the Supreme Court of the Czech Republic and the case was returned to the District Court for Prague 1, which again granted the complainants. According to assumptions, the owner of the road appealed again.
In the case in question, the District Court for Prague 1 decided according to the previous amendment contained in the Civil Code No. 40/1964 Coll., the Civil Code (hereinafter referred to as the "Residential Code") valid until 2014. Specifically, the issue of protection against immision was regulated in § 127 BývOZ This provision in paragraph 1 provided that"The owner of the thing must refrain from anything that would annoy another beyond the measure appropriate to the circumstances or that would seriously threaten the exercise of his rights. Therefore, in particular, he must not endanger a neighbor's building or land by modifying the land or by modifying the structure established on it without taking sufficient measures to secure the building or the land, he must not disturb the neighbors with noise, dust, ash, smoke, gases, vapors, odors beyond a measure appropriate to the circumstances , solid and liquid waste, light, shading and vibrations, he must not allow farmed animals to enter the neighboring land and remove tree roots from his land or remove tree branches extending onto his land unsparingly, or at an inappropriate time of year. § 127 BývOZ thus represented protection against interference with the rights of the owner of the real estate caused by imis, or against harassment by the exercise of another's ownership right. Apart from protection through the aforementioned § 127 of the BývOZ, however, it was not possible to find any other suitable and effective means of protection against immis, as Dudová states, for example, in her article "A few notes on the legal enforceability of the public interest in protecting health from noise".[1]. In this context, it is possible to point out, for example, the question of the effect of emissions from transport on the health of affected persons. However, the civil law regulation does not primarily serve to protect the health of the affected person, it is only a side effect of the protection provided. From the very nature of the matter, it is not possible to transfer responsibility for the protection of health from noise to civil courts. Health protection against immision should be provided primarily by public administration bodies on the basis of public law regulations,[2] however, this method is not reliable in all cases (e.g. in the procedure for granting noise exemptions, the owners of the surrounding properties are not its participants, they often do not even learn about the procedure and do not have effective means of defense). However, this topic is not the subject defined in this article and will therefore not be discussed in more detail here.
Until 2012, the owners of the affected real estates mainly turned to the courts in order to get the situation rectified at least through civil law through the protection provided by Section 127 of the Housing Act, even if it was immissions caused by traffic. However, the limitation of this possibility of applying protection against traffic noise immissions through § 127 BývOZ occurred as a result of the decision of the Constitutional Court of 11 January 1, file no. stamp I. ÚS 2011/451. With this decision, the Constitutional Court annulled the judgments of the general courts, by which these courts imposed the obligation on the owner of the road to refrain from disturbing the road traffic with noise so that the value of the equivalent sound pressure level reached maximum values of 11 dB between 54 a.m. and 6 p.m. and 22 dB between 35 p.m. and 22 a.m. The Constitutional Court based its decision on the following arguments:
"The general courts - in the opinion of the Constitutional Court - insufficiently took into account the specifics of the general use of local roads and the consequences of car traffic on its surroundings, thereby disregarding the condition for distinguishing between permissible and impermissible interference with property rights, i.e. "a measure commensurate with the circumstances". This condition, from the perspective of the proportionality test, is consistent with the constitutional principles of limiting one of the fundamental rights – the right to property protection. The Constitutional Court therefore considers that, in a situation of conflict between two fundamental rights, the general courts unjustifiably preferred the protection of the property rights of the parties involved, as owners of real estate immediately adjacent to the road, thereby simultaneously interfering with the property rights of the complainant in a constitutionally non-conforming manner. There is no doubt that the state of the local road in question, including the traffic on it, is the result of many years of development, which many of the parties involved may have already known at the time of acquiring their ownership rights.
For the given matter, it is legally significant that the municipality, as the owner of a local road, is obliged to tolerate the general use of this road without the possibility of regulating traffic on it. Such authorization belongs (with the exceptions provided for in § 24, paragraph 8 of Act No. 13/1997 Coll., on land transport, relating to cases where there is a risk of delay) - even in the case of closure or partial closure of a local road in the sense § 24 paragraph 2 of this Act, to the relevant road administrative office; the request for closure is only discussed with the owner of the road. It is therefore obvious that the municipality, however much it is the owner of the road, is not authorized, with exceptions, to regulate traffic on it in any way, and thus influence the negative consequences that traffic causes on the road (among other things, also noise emissions)."[3]
In the aforementioned decision, the Constitutional Court also referred to § 27, paragraph 4 of Act No. 13/1997 Coll., on Land Transport (hereinafter referred to as "ZPK"), which stipulates that the owner of a highway, road, local road or sidewalk is is obliged to compensate the owners of neighboring properties for damages caused to them as a result of the construction condition or traffic technical condition of these roads, but is not obliged to compensate for damages caused to the owners of neighboring properties as a result of traffic on these roads. The Constitutional Court acknowledges in the aforementioned decision that the rights of the owners of the affected properties are violated due to traffic emissions, but in its opinion it is not a violation beyond the level appropriate to the long-term conditions (as we can also see in the quote above). This opinion of the Constitutional Court could also be interpreted in such a way that if a person moves to a place with significant immissions from traffic, or significant immissions are gradually created in the place, these immissions do not represent a restriction of the property rights of this person beyond a measure commensurate with the circumstances. It is obvious that such a conclusion is very strict in relation to the affected owners, as it de facto deprives them of the possibility to influence the creation of problematic noise or to defend against it. It is therefore not surprising that the professional public also paused over the given finding (see, for example, the already mentioned article by Dudová) and that its conclusions can be discussed.[4] In the case of an extensive application of the said finding, the possibility of protecting owners against noise emissions caused by traffic (and not only these emissions) through private law regulation could be significantly limited.
The Supreme Court commented on the conclusions stated in the verdict of the Constitutional Court and their application, for example, in its decision of 28 January 1, no. stamp 2015 Cdo 22/3559. In this decision, the Supreme Court highlights the specifics of the case discussed by the Constitutional Court, but at the same time rejects the mechanical and extensive application of this decision by general courts and specifically states:
"After all, from the decision of the Constitutional Court of January 11, 2012, file no. stamp I. ÚS 451/11, it clearly follows that protection against excessive emissions can be denied only on the condition that the plaintiffs' rights are not violated to an extent disproportionate to the long-term conditions around the public road. Only in such a case is it not possible to impose an obligation on the defendant to refrain from disturbing noise and pollutant emissions originating from road traffic.
In order to resolve the dispute, it will therefore be necessary to examine whether the protection of the defendant's property right can be achieved by measures other than limiting the rights of the plaintiffs to the undisturbed use of their home, taking into account the defendant's factual capabilities and the specific circumstances of the place and time. The fact that the defendant (municipality) "as the owner of a local road is obliged to tolerate its general use without the possibility of regulating traffic on it" does not mean that it cannot influence emissions from such traffic using other tools. It is possible to refer again to the conclusions of the Constitutional Court in the judgment indicated above, where when assessing the adequacy of the conditions, the court took into account the fact that the defendant implements organizational and technical measures aimed at reducing immissions, specifically by building an anti-noise wall or by modifying the window structures. Such a measure can certainly be the construction of new traffic roads, but all this is subject to an assessment of the reality of the implementation in relation to the above criteria. It is not excluded that an expert examination will also be used to solve this question. At the same time, it will be necessary to compare the severity of the rights of the participants, also with regard to the plaintiffs' right to a favorable environment and the protection of their health."
The Supreme Court thus relativizes the conclusions of the Constitutional Court, citing examples of measures that the owner of a road can take in order to reduce emissions affecting surrounding properties. The Supreme Court therefore emphasizes the necessity of assessing the specific circumstances given by place and time, in particular the level of emissions originating from traffic and the actual possibilities of the road owner to reduce them.
In its next decision of 3 June 6, file no. stamp no. 2015 Cdo 22/3277, the Supreme Court states that "the owner of a highway, road, local road or sidewalk is liable according to § 2014, paragraph 1013 of Act No. 1/89 Coll., Civil Code (hereinafter referred to as "OZ") for interference (immissions) that arose as a result of the construction condition or traffic technical condition of these roads, however, is not liable without further ado for emissions that arose only as a result of traffic on the roads." , where it is stipulated that: "The owner refrains from anything that causes waste, water, smoke, dust, gas, smell, light, shadow, noise, shocks and other similar effects (immissions) to enter the land of another owner (neighbor) to an extent disproportionate to local conditions and significantly restrict the usual use of the land; this also applies to the entry of animals. It is prohibited to directly introduce emissions onto the land of another owner, regardless of the degree of such effects and the degree of nuisance to the neighbor, unless this is based on a special legal reason., the Supreme Court in this decision confirms the argumentation of the Constitutional Court mentioned above and specifically states that: "If the claimant seeks protection against emissions from road traffic against its owner, the court will determine whether it is a disturbance that exceeds the level appropriate to local conditions and whether it restricts the usual use of the property. Furthermore, they will find out whether the emissions originate at least in part in the construction condition of the road (or in other circumstances attributable to the owner, e.g. in the frequency and quality of road cleaning) and whether they can be influenced by its modifications".[5] In this decision, the Supreme Court, like the Constitutional Court, refers to the use of § 27 ZPK and thereby de facto accepts the limitation of the possibility of private law protection against emissions from transport through § 1013 paragraph 1 OZ. One can agree with this conclusion to the extent that it would certainly be illogical for the owner of the road to be given any obligation that he objectively cannot fulfill. However, the question is to what extent, even in the case considered by the Constitutional Court, the owner of the road is limited in influencing the amount of noise immissions entering the surrounding properties, to what extent the stated obligation to reduce the noise load is unfulfillable (whether we can fairly ask the owner of the road to fulfill it), and to what extent it is a question of the amount of possible costs.
In this context, if we return to the case mentioned at the beginning of the article, i.e. to the lawsuit for protection against pollution caused by traffic in V Holešovičkách Street, we will find in the decision of the District Court for Prague 1 a reference to § 30, paragraph 1 of Act No. 258/2000 Coll., on the protection of public health, according to which the owner, or the administrator of the infrastructure, is obliged to take technical, organizational and other measures to ensure that the noise does not exceed the hygienic limits regulated by the implementing legislation, which is currently Government Regulation No. 172/2011 Coll. ., on health protection against the adverse effects of noise and vibrations. The District Court for Prague 1 then further expresses the opinion in its decision (in which, however, its assessment of the specific situation differs from the assessment of the specific situation by the Constitutional Court) that the municipality in this case has the appropriate means to implement the necessary changes and measures. According to the District Court for Prague 1, the level of immissions penetrating the plaintiffs' property is inexcusable by the argument of the difficult possibility to influence the use of the road, and the argument regarding the financial burden of the necessary measures is also unacceptable. The court points to the fact that the defendant ignores the situation in V Holešovičkách Street, preferring different, less serious locations, and further draws attention to the fact that it was also the actions of the defendant that caused further deterioration of the situation in V Holešovičkách Street. The District Court for Prague 1 does not blindly adopt the conclusions of the Constitutional Court from the above-cited decision, but carefully evaluates the specific situation in a wider context, especially with regard to the possibility of the owner of the road to influence the emergence of emissions on the said road, as well as other specifics of the case being dealt with, such as a long-term effort plaintiff about achieving rectification of the situation in the area, etc.
With regard to the already mentioned problematic nature of achieving the rectification of the situation through public law, the said decision of the District Court for Prague 1 is to be welcomed, but whether it will be overturned or confirmed is also a question given the above-mentioned (not entirely uniform conclusions) of the Supreme Court and the Constitutional Court. The assessment of cases of protection against immissions arising from road transport depends to a large extent on the opinion of a particular court and its subjective view of such immissions, their origin, impact and the need for protection against them. Despite this, or precisely because of this, the decision of the Court of Appeal will be eagerly awaited.
Source: epravo
The team of the Vych & Partners, s.r.o. law office
[1] Dudová J., Several notes on the legal enforceability of the public interest in protecting health from noise, Právní rozhledy, Prague: CHBeck, 2012, vol. 2012, No. 21; The opinion that the private law way of defense against noise emissions is in many cases more suitable than the public law way of defense is also expressed in his article Responsibility for noise burden in decision-making practice. In Liability in Environmental Law. 1st ed. Brno: Faculty of Law, MU Brno, 2012
[2] E.g. through Act No. 258/2000 Coll., on the protection of public health, and its implementing regulations
[3] Finding of ÚS I. ÚS 451/11
[4] For example, the opinion of the Supreme Court expressed in the decision of 26 April 4, file no. stamp 2006 Cdo 22/223: "If the boundary between permissible and impermissible harassment should be determined only according to the conditions in a given place and time and not according to conditions that are desirable and that should persist, it would not be possible to successfully claim protection according to § 2005 paragraph 127 of the Civil Code, in the event that the behavior of all other natural or legal persons in the place is objectionable from the point of view of this provision." The Supreme Court also refers to this decision, for example, in its decision of 1 February 19 sp. stamp 2 Cdo 2016/22 and expresses the same opinion in the decision of 3532 August 2006, file no. stamp 30 Cdo 8/2007.
[5] Collection of civil decisions and opinions of the Supreme Court, No. notebook 3/2016, citation C 14793.
