Background

Traffic noise disturbance must be considered when constructing residential buildings. Research has shown that exposure to noise can cause health problems (eg, high blood pressure and heart disease); but there is also a consensus that further development of certain urban areas will require housing construction in places that are exposed to traffic noise.

Despite the importance of the matter, the governing law thus far has been unclear. With no legislation in place, developers have been subject to varying case law, with considerable legal uncertainty and different outcomes throughout the country. In 2015 Parliament passed legislation authorising the government to regulate the matter in detail.

Ordinance

The new Ordinance on Traffic Noise Levels in Housing Construction (2015:216) entered into force on June 1 2015 (for further details please see "Environmental noise in urban areas – moving towards greater acceptance?"). The ordinance contains provisions on noise from rail, road and airport traffic.

The provisions regarding rail and road traffic state that noise should not exceed the equivalent of 55 A-weighted decibels (dB(A)) at the façade of a residential building, and a maximum of 50 dB(A) and 70 dB(A) on patios. For apartments with an area of less than 35 square metres, the noise should not exceed the equivalent of 60 dB(A) at the façade.

Should the noise exceed the stated target values, at least half of the rooms in an apartment should face towards a side of the building where 55 dB(A) is not exceeded. Also, at least half of the rooms should face towards a side where 70 dB(A) is not exceeded between 10:00pm and 6:00am. Should the target noise value for a patio be exceeded, it should not be exceeded by more than 10 dB(A) a maximum five times an hour between 6:00am and 10:00pm.

The ordinance further provides that noise from an airport and its traffic should not exceed 55 dB(A) and 70 dB(A) at the façade of a residential building. The target value does not apply to noise disturbances from airports in Stockholm between 6:00am and 10:00pm. Should the target value be exceeded it should not be exceeded more than 16 times between 6:00am and 10:00pm and three times between 10:00pm and 6:00am. The limitation does not apply to airports in Stockholm between 6am and 10pm.

Analysis

The main purposes of the ordinance are to harmonise the legal framework for construction and promote the construction of residential buildings in urban areas. While the first objective is achieved by simply passing any ordinance on the subject, the second is more difficult to realise. It could be argued that harmonisation per se will promote construction, but to what extent do the provisions solve the problem addressed?

To begin with, the ordinance has some flaws which may impede its effectiveness. The provisions are framed as target values, not limit values. Swedish courts have abandoned target values in favour of limitations when issuing permits for operations causing noise disturbances and other nuisances. The rationale is, among other things, that target values are inherently harder to enforce and thus less likely to deter undesirable behaviour. The vagueness is also detrimental to developers trying to abide by the rules. Until the ordinance has generated established case law, there is no way of predicting the conditions under which target values have exceeded the law.

Further, parliamentary support of the provisions is considered vague. The target values of the ordinance have been criticised by all parties in Parliament, making it predisposed for future amendments. The formal grounds of the ordinance have also been questioned, especially with regard to its scope of application. According to some critics, the statutory authorisation for the government to regulate noise from rail and road traffic is limited to areas without detailed (zoning) plans. Should the courts share this view, the ordinance will be rendered useless where it is supposed to mainly operate.

However, the ordinance is not without merit. The special rule for apartments no larger than 35 square metres promotes the building of student housing and small apartments in demand by young people seeking to enter the housing market. This segment of the housing market is often perceived as neglected. The ordinance also circumvents the regulation of Bromma Airport – the main airport affected – enabling it to enter into force without interfering in the debate regarding Bromma Airport's future.

Comment

Some issues with the ordinance will need to be resolved for it to function properly. The adjustments required can be made either through its application by the courts or by formal amendment. Until the extent and nature of the changes foreseen are known, some uncertainty remains regarding the long-term effects on the market. The ordinance sends a clear signal that the legislature intends to fulfil the goals set out to promote housing construction in urban areas. This should be interpreted as good news for developers.

For further information on this topic please contact Rikard Lind or Madeleine Edqvist at Advokatfirman Lindahl KB by telephone (+46 40 664 66 50) or email (rikard.lind@lindahl.se or madeleine.edqvist@lindahl.se). The Advokatfirman Lindahl KB website can be accessed at www.lindahl.se.

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