Real Estate Perspective: Identification and Compensation of Night Construction Noise Pollution on Construction Sites
Published:
2021-09-01
With the rapid development of China's economy and society and the accelerating process of urbanization, the problem of noise pollution is becoming more and more prominent. According to the 2020 China Environmental Noise Pollution Prevention and Control Report released by the Ministry of Ecology and Environment, according to incomplete statistics, more than 2 million environmental noise complaints were received nationwide in 2020. Among the public reports received by the "National Ecological Environment Complaint Management Platform", noise nuisance accounted for 41.2, ranking second among all environmental pollution factors. Among them, the construction noise pollution at night is widely concerned because it is closely related to the life and rest of residents. In practice, how should night construction noise pollution be determined? How to compensate?
Question raised
With the rapid development of China's economy and society and the accelerating process of urbanization, the problem of noise pollution is becoming more and more prominent. According to the 2020 China Environmental Noise Pollution Prevention and Control Report released by the Ministry of Ecology and Environment, according to incomplete statistics, more than 2 million environmental noise complaints were received nationwide in 2020. Among the public reports received by the "National Ecological Environment Complaint Management Platform", noise nuisance accounted for 41.2, ranking second among all environmental pollution factors. Among them, the construction noise pollution at night is widely concerned because it is closely related to the life and rest of residents. In practice, how should night construction noise pollution be determined? How to compensate?
Relevant views and cases, referee views
The (I) determination of whether it constitutes night construction noise pollution should be judged from the dimensions of geographical scope, time range, emission standards, etc.
Case one:Case of Dispute over Noise Pollution Liability between Shanghai Minghua Engineering Construction Co., Ltd. and Huang Wenjie (Hubei Wuhan Intermediate People's Court (2017) E 01 Min Zhong No. 1877)
The Court held that:1. Huang Wenjie is a resident of Room 2B-1003, Dongxing Tiandi Area B, Sangong Road, Qingshan District, Wuhan City. Hubei Hongcheng Company and Shanghai Minghua Company are respectively responsible for the construction of K3 South and K3 North Phase I and K3 North Phase II projects in Qingshan District (the residential area and K3 plot are separated by a road named Sangong Road). The generated construction noise has caused certain impact on the surrounding areas.
2. On July 4, 2016, the Environmental Protection Monitoring Station of Wuhan Qingshan District People's Government, according to the requirements of Wuhan Qingshan District Environmental Monitoring Brigade, conducted a survey on the construction site boundary of Shanghai Minghua Company (Dahua K3 site Phase II) (during the monitoring period, the site was under construction, and Building 12 was being poured with concrete, accompanied by the use of vibrating rods, mixer operation) and sensitive point (1 m outside the window sill of room 1003 in area B of dongxing tiandi) are monitored at night. the noise emission value of the monitoring point at night is 66.3 decibels, and the maximum noise measurement value at night is 84.8 decibels. according to the provisions of the environmental noise emission standard for construction site boundary, the noise emission limit value at night is ≤ 55 decibels, the maximum noise emission limit at night is ≤ 70 decibels, so the ambient noise at night and the maximum noise emission at night at the construction site boundary of Shanghai Minghua Company (Dahua K3 plot site phase II) both exceed the standard. The noise measurement value of the sensitive point (1 m outside the windowsill of room 1003 in area B of Dongxing Tiandi) is 50.8 decibels. According to the provisions of the Acoustic Environment Quality Standard, the noise emission value of the sensitive point is ≤ 50 decibels, therefore, the night noise emission value of the sensitive point exceeds the standard. In this case, the noise generated by the construction site of Shanghai Minghua Company exceeded the national emission standards. In particular, the monitoring point located on the window sill of the surrounding resident Huang Wenjie also showed that the noise at night exceeded the national emission standards. It can be determined that Shanghai Minghua Company has noise pollution behavior.
Determination of whether the personal injury and mental damage caused by excessive construction noise at night can be compensated for (II)
Case two:Tian Jian and Henan Peace Construction Co., Ltd. Noise Pollution Liability Dispute (Henan Xinxiang City Hongqi District People's Court (2020) Yu 0702 Minchu No. 4010)
The Court held that:1. In this case, the plaintiff proved that the defendant had polluted the environment by providing the court with evidence such as the test report, the video of the construction site, and the reply of the Municipal Environmental Protection Bureau, and proved the fact of damage through the alarm record, diagnosis certificate, medical bill and other evidence. The defendant's construction time stated in the above evidence can be consistent with the plaintiff's alarm, complaint time and the plaintiff's medical treatment time, so it can be determined that there is a causal relationship between the plaintiff's damage facts and the noise generated by the defendant's construction.
2. In this case, the noise pollution caused by the defendant's previous construction has already affected the plaintiff's physical and mental health. The plaintiff went to see a doctor twice due to the defendant's noise pollution behavior, and the medical expenses spent totaled 568.69 yuan. The plaintiff's loss was objective. The defendant should compensate the plaintiff for the loss. The court supported the plaintiff's claim for compensation for medical expenses.
With regard to the compensation for mental damage claimed by the plaintiff, according to the first paragraph of Article 8 of the interpretation of the Supreme People's Court on determining the liability for compensation for mental damage in civil tort, it is stipulated that "if the infringement causes mental damage, but does not cause serious consequences, the victim's request for compensation for mental damage is generally not supported, The people's court may order the infringer to stop the infringement, restore his reputation, eliminate the impact and apologize according to the situation.", The evidence provided by the plaintiff in this case is not sufficient to prove that the defendant's tort has caused serious mental damage to him, so the plaintiff's claim is not supported.
Case three:He Yan and Chongqing Sino-French Water Supply Co., Ltd. Chongqing Dianjiang Municipal Construction Co., Ltd. Dispute over Noise Pollution Liability (Chongqing Yubei District People's Court (2021) Yu 0112 Minchu No. 2939)
The Court held that:Although the plaintiff showed the screen shot and test video of its self-testing noise decibel value by using mobile phone software to prove that the construction noise of Dianjiang Municipal Company at night exceeded the standard, the evidence presented by the plaintiff could not prove that the monitoring data and means had professional and scientific conditions because the environmental noise monitoring needs to be carried out according to the standard monitoring and analysis methods at specific monitoring points by the instruments with measurement verification and calibration, the hospital is also unable to confirm the objective authenticity of the monitoring results. Thirdly, since the defendant Dianjiang Municipal Company has completed the construction, it does not have the objective conditions to monitor or identify the construction noise of Dianjiang Municipal Company at present, and the court cannot explain to the plaintiff the burden of proof that should be borne by the defendant by applying for monitoring or identification. Therefore, the existing evidence in this case cannot prove that the plaintiff suffered from environmental noise pollution, when the truth of the fact is unknown, the party with the burden of proof, the plaintiff, shall bear the adverse consequences of the proof. To sum up, the plaintiff He Yan's claim has no factual basis and the court will not support it.
Views of our lawyers
1. Article 30 of the Law on the Prevention and Control of Environmental Noise Pollution stipulates that "in areas where noise-sensitive buildings are concentrated in urban areas, construction operations that produce environmental noise pollution are prohibited at night, except for emergency repairs, emergency rescue operations and continuous operations due to production process requirements or special needs. If continuous operation is necessary due to special needs, a certificate must be issued by the people's government at or above the county level or its relevant competent department. The night operations specified in the preceding paragraph must be announced to the residents in the vicinity".
This article is limited in terms of geographical scope, time frame, exceptions and operating procedures, respectively. The area where night construction is prohibited is limited to the "concentrated area of noise-sensitive buildings in urban areas". The supplementary provisions of this law further explain the area: "concentrated area of noise-sensitive buildings" refers to medical areas, cultural, educational and scientific research areas and areas dominated by government organs or residential buildings. In terms of the time frame, the Act defines "night time" as between 22 p.m. and 6 a.m. At the same time, in order to take into account the actual situation of my country's vast territory and large time difference, paragraph 3.8 of the "Environmental Noise Emission Standard for Construction Site Boundary" stipulates: "People's governments at or above the county level have the right to divide the" daytime "and" night "time periods for local construction". In addition, the article provides for four statutory exceptions to the need for continuous operations and procedural matters to be fulfilled in continuous operations.
As for the emission standard of noise pollution during construction at night, paragraph 4 of the emission standard for environmental noise at the boundary of construction site stipulates: "the emission limit of environmental noise at night during construction is 55dB(A) and the maximum sound level of noise at night shall not exceed the limit by more than 15dB(A)". Case 1, the area where Huang Wenjie lives belongs to the area where noise-sensitive buildings are concentrated in the urban area. The noise generated by the construction site of Shanghai Minghua Company at night has exceeded the emission standard and affected the normal life and rest of neighboring residents, thus constituting noise pollution during night construction.
2, through the case two and case three point of view show that due to noise pollution caused by the residents of personal injury can be compensated for the key is to meet the "excessive" "nuisance" of the two aforementioned conditions. If the plaintiff can prove that the construction noise at night exceeds the standard and causes actual damage to it, the construction unit shall bear the tort liability and compensate the plaintiff for the medical expenses incurred. On the other hand, it is impossible to draw the fact that the construction unit has infringement, and it is difficult for the plaintiff to claim compensation for personal injury costs to be supported by the court.
Regarding whether the claim of compensation for mental damage can be supported, reference should be made to the provisions of the first paragraph of Article 183 of the Civil Code: "If the infringement of the personal rights and interests of a natural person causes serious mental damage, the infringed person has the right to request compensation for mental damage". In addition, the distance between the construction site involved in the case and the plaintiff's residential building, the degree of influence on the plaintiff's normal life, study and rest, the time and frequency of the infringer's overtime construction, the sound value and frequency of excessive noise emission are combined to judge whether compensation for mental damage is applicable.
To sum up, in view of the noise pollution problem of night construction, the construction site should be civilized construction. On the one hand, the consciousness of construction personnel to prevent noise nuisance should be improved by strengthening publicity and education. On the other hand, noise reduction nets can be hung around the building and construction machinery with low noise or noise reduction equipment can be selected to strictly control noise pollution and avoid infringement disputes. The infringed should pay attention to keeping all kinds of evidence materials proving the damage of their rights and interests, as well as the records of reporting and complaining to the competent authorities, and timely entrust professional institutions to monitor and analyze the environmental noise emission data, which is particularly critical to the realization of their demands.
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