Regulation of noise

Siskinds LLP

15 years ago

Noise is one of the classic irritants that drives neighbours crazy. While not a “pollutant” in the traditional sense of a “chemical” or ” substance”, noise is “emitted” into the natural environment and is regulated under environmental laws.

What is noise?

One of the central problems with noise is how to define it. The federal nor Ontario governments leave this to the municipalities, which struggle for clarity. For example, Guelph defines noise as “sound that is of such a volume or nature that it is likely to disturb the inhabitants of the City” and Toronto’s simply as “unwanted sound”. Generally, noise means a sound that does or may disturb the quiet, peace, enjoyment or comfort of people who are in the vicinity. Noise can come from a stationary source (e.g., industrial operations, fixed equipment, air conditioners, construction work), mobile sources (mainly transport-related, especially road traffic, but aircraft and trains can be significant sources of noise in some areas; your neighbour’s chainsaw) and may be generated by people and animals (e.g., shouting, music, parties, barking dogs). Sometimes all it takes is the tinkling of a neighbour’s wind chime to drive somebody nuts.

Components of sound

Sound has two basic characteristics, frequency (pitch, measured in wave cycles per second, or hertz) and intensity (loudness, measured by sound pressure level, in a logarithmic scale called decibels). Most of us can hear sounds within a frequency range of 20-20,000 Hz, and we vary in our tolerance of loud sounds: zero dB represents the (approximate) threshold of normal hearing. Generally, sounds of up to 60dB are quiet (e.g., normal conversation, singing birds), while 100 dB is extremely loud (e.g., powered lawnmower or tractor, inside of subway train); 120 dB is uncomfortably loud (e.g., amplified rock music, jackhammer) and the threshold for human ear pain is 140 dB (e.g., jet plane at takeoff, shotgun blast).

Does noise impact health?

Health Canada, in its 1998 report The Health and Environment Handbook for Health Professionals: Health and Environment, identifies environmental noise as an emerging health concern. Noise can have impact on health: hearing loss, stress-related effects like sleep disturbances, decreased school or job performance. As well, the report by Toronto’s Medical Officer of Health, Health Effects of Noise (2000) indicates that elevated blood pressure and physiological reactions to noise may possibly lead to increased cardiovascular disease.

How is noise regulated?

Federal government

The federal government sets standards for noise emission labelling and maximum sound emissions for consumer products (e.g., limits for noisy toys, under the Hazardous Products Act), as well as for equipment and vehicles. For example, the Motor Vehicle Safety Act & regulations mandate maximum exterior sound levels for vehicles, as well as interior sound levels for certain large trucks and buses.

The Canada Labour Code regulates occupational noise in federally regulated workplaces. Every employer must ensure that levels of sound and vibration are in accordance with prescribed standards. For example, the Aviation Occupational Safety and Health Regulations and the Oil and Gas Occupational Safety and Health Regulations under the Code set maximum sound levels to which workers can be exposed during a 24-hour period.

Health Canada’s Acoustics Division promotes reduction of the health effects of noise exposure and provides and implements standards to protect against occupational and environmental noise, among other things. As well, Health Canada is required to advise on the health effects of environmental noise to environmental assessments involving other federal departments. For example, in 1989, Health Canada commented on the health aspects of noise that would be associated with the construction of additional runways at Toronto’s Pearson Airport.

Health Canada spearheaded development of the (voluntary) Canadian Standards Association’s standard Noise Emission Declarations for Machinery. These declarations appear in instructions, technical sales literature and labels and also assist employers in decisions to purchase quieter machines, implement noise control plans and comply with occupational and environmental noise regulations.

Provincial laws

The provinces establish noise control guidelines for land use planning, and also authorize municipalities to create and implement municipal plans and noise-control by-laws. Occupational noise exposure thresholds are also set by provincial occupational health and safety laws and regulations. The provinces are also responsible for controlling the noise levels for many products, equipment and vehicles while in operation, through various environmental and other statutes. For example, unnecessary noise from a bell, horn or signalling device is prohibited under Ontario’s Highway Traffic Act.

Ontario’s Environmental Protection Act (EPA) prohibits the discharge of a contaminant into the natural environment, if the discharge causes or may cause an adverse effect. Under the EPA, “discharge” includes emitting something. A “contaminant” can mean sound and an “adverse effect” includes harm or material discomfort (to a person), adverse health effect and loss of enjoyment of normal use of property.

Not all noise is prohibited; for example, facilities that create noise may obtain permits called “certificates of approval” from the Ministry of the Environment (MOE) that permit them to emit noise (e.g., through their operations, machinery, etc) up to a certain threshold. There are extensive MOE guidelines on applying for noise approvals, which require, at a minimum, that the proponent assess and document the impacts of all noise emissions from a facility on sensitive locations outside their premises.

Some permits require that noise levels be controlled. For example, under the Licences to Sell Liquor Regulation to Ontario’s Liquor Licence Act, anyone who holds a licence to sell liquor in outdoor premises may not permit noise from entertainment or from the sale and service of liquor to disturb nearby residents. A recent case illustrates how politically charged these issues may be. From 1996 to 2006, a business called Docks on Cherry operated under a liquor licence at the Toronto waterfront. Due to numerous complaints from neighbours over the years, the City opposed renewal and expansion of the licence. The Alcohol & Gaming Commission of Ontario held a 26-day hearing during which the City gave evidence of repeated violations of the noise by-law and several charges under that by-law. The AGCO revoked the licence. Although this was not the end of the matter (the Divisional Court set aside the decision, and the AGCO and City sought leave to appeal to the Court of Appeal), the issue became moot as another entity purchased the site, and managed come to an agreement with the neighbours to have its liquor licence approved. In granting the licence in 2008, the AGCO added several conditions to the licence, including that no sound emanating from the premises be audible (i.e., to the human hear of any person, unassisted by mechanical or other means) to the nearby community at any time; and that a monitor be assigned to roam the community and report any sound audible immediately, and to respond to complaints. As well, other security and testing procedures were mandated. (See in Re Polson Pier Entertainment Inc.)

Municipalities

Ontario’s Municipal Act, 2001 gives municipalities the power to prohibit and regulate with respect to noise. Similar provisions exist in other provinces. As well, municipalities control land use management, zoning, traffic management and road noise barrier programs. Municipal public health boards, established under Ontario’s Health Protection & Promotion Act (HPPA), are required under the 2008 Ontario Public Health Standards (and related Protocols) to identify health hazards and take action. The term “health hazard” is defined broadly in the HPPA as a condition of a premises; a substance, thing, plant or animal other than human, or as solid, liquid, gas or combination that has or is likely to have an adverse effect on human health. While it is not clear whether “noise” would be included as such a hazard, public health units typically provide health programs that address hearing issues.

Municipal noise by-laws typically include prohibitions on certain types of noise (e.g., operating loud machinery/tools, shouting, loud music, barking, honking) at specified times (e.g., after 11 p.m. or all the time) in prohibited areas (e.g., residential). They typically contain both objective and subjective criteria. Objective criteria include, for example, prohibiting continuous (or non-continuous) sound that exceeds a certain sound meter rating, or exceeds background noise by a certain amount. As well, limitations may be set for certain sound emissions (e.g., from residential air conditioners). However, it is often a judgment call as to whether someone has infringed a noise by-law where the criteria to consider are whether the sound was “likely to disturb” neighbours (or a religious ceremony in a place of worship), or “clearly audible” to all or most?

By-laws are sometimes challenged in courts as overly vague or prohibitive, or as infringing rights of the noise-maker under the Canadian Charter of Rights and Freedoms. For example, in 2005, the Supreme Court of Canada upheld the right of municipalities to regulate environmental nuisances, in Montreal (Ville) v. 2952-1366 Quebec Inc. The City had charged a nightclub with breaching its noise by- law, by using loudspeakers to broadcast its shows into the street. Two lower courts quashed the bylaw, saying it infringed the club’s freedom of expression. The Supreme Court agreed that the street is a public place where free expression is protected, and the amplified soundtrack was indeed a protected form of expression. However, the Court found that the by-law was justified: there is a pressing and substantial need to control noise pollution, and the by-law went no farther than necessary. City officials had made a reasonable effort to identify and control only those noises that interfered with people’s peaceful enjoyment of the city.

Some municipalities have comprehensive noise control guidelines. For example, Ottawa’s Environmental Noise Control Guidelines (2006), based mainly on MOE policies and guidelines, implement the noise policies in the City’s Official Plan.

Some challenges in regulating noise

The subjective criteria used in noise by-laws and guidelines make it difficult for triers-of-fact to make objective decisions. The standard may vary from neighbourhood to neighbourhood in a community. For example noise may be defined as sound that is “clearly audible” under certain circumstances, or “of such a volume or nature that it is likely to disturb”; or “can easily be heard by an individual who is not on the same premises”. The “high annoyance”, which is usually measured via community surveys, is widely used to measure the well-being of residents.

One gap in federal laws is that products are not monitored after they are sold, when they might deteriorate and exceed sound thresholds required when they were manufactured.

As sound levels, frequency and quality vary with time, it is difficult to determine what the impact of sound will be at the planning stages of any project. As well, the cumulative impact of several noise sources may be difficult to assess. Experts are now able to project sound impacts through sophisticated computer modelling programs, but caution that ongoing noise monitoring is critical.

Conclusion

It’s a no-brainer that noise should be controlled; noise control efforts should be directed to reducing noise at its source, such as during the design stages of a new facility or equipment.

Minimizing noise not only helps to reduce adverse health effects to exposed workers, it also greatly reduces annoyance in the workplace and community

Resources

Believe it or not, Health Canada’s The Health and Environment Handbook for Health Professionals: Health and Environment is hard to find – we located a copy posted on the WHO’s Panamerican Health Organization site, Virtual library of sustainable development and environmental health, at http://www.bvsde.paho.org/muwww/fulltext/saneam/health/Chapter3.pdf

Ottawa Noise Control Guidelines

http://www.ottawa.ca/residents/planning/design_plan_guidelines/completed/noise_ctl/index_en.html

The Canadian Hearing Society’s October 2008 Position Paper on Noise Pollution at

Guelph by-law

http://guelph.ca/uploads/PDF/By-laws/noise.pdf

Vancouver by-law

http://vancouver.ca/bylaws/6555c.pdf

Toronto’s by-law

http://www.toronto.ca/legdocs/bylaws/2002/law0476.pdf

Health Canada

http://www.hc-sc.gc.ca/ewh-semt/noise-bruit/index-eng.php

Noise control & impact assessment at Health Canada