|Dish:||Administrative Court of Baden-Württemberg, 10th Senate|
|File number:||10 S 2317/99|
|ECLI:||ECLI: DE: VGHBW: 2000: 1108.10S2317.99.0A|
Reasonable noise emissions when harvesting at night
1. Chopping machines, tractors and combine harvesters, which are used as harvesting machines, are to this extent systems according to § 3 Paragraph 5 No. 2 BImSchG and not vehicles within the meaning of § 38 BImSchG.
2. The reasonableness of noise immissions for the neighborhood due to nocturnal harvest operations in agriculture is to be assessed on the basis of a corresponding application of the essential principles of the TA Lärm, even if it does not apply directly to agricultural facilities according to No. 1, Paragraph 2, Letter c.
VGHBW-Ls 2001, Appendix 3, B 5
VBlBW 2001, 191-192 (guiding principle and reasons)
UPR 2001, 193-194 (guiding principle and reasons)
Immission control 2001, 65 (reasons)
VA 2001, 88 (red. Guiding principle and reasons)
BauR 2001, 1063-1065 (guiding principle and reasons)
BWGZ 2001, 519-521 (guiding principle and reasons)
NuR 2001, 397-399 (guiding principle and reasons)
NVwZ 2001, 1184-1186 (guiding principle and reasons)
BImSchG-Rspr § 22 No. 143 (guiding principle and reasons)
BRS 63 Nr 193 (2000) (guiding principle and reasons)
RdL 2002, 66-69 (guiding principle and reasons)
more sources ...
previous VG Sigmaringen, March 3, 1999, Az: 3 K 110/98
The plaintiff seeks the issuance of an immission control order against the summoned party.
She lives in S. in an agricultural environment. The property at J.-Strasse 5 is located on the southern outskirts. In the vicinity are a sports hall, a musicians' home, a tennis court, a primary school and a Raiffeisen market. Approx. 500 to 550 m to the southwest is the Aussiedlerhof of the invitee. His fields with the river are only a little north of the court of the summoned man. Nos. 174 to 176 in the Gewann S. Weg. About 100 to 200 m further west of the Aussiedlerhof is the place E.
In the past few years, the person summoned had worked his fields several times during harvest work, including at night. The plaintiff had found this to be a considerable impairment of her night's sleep.
In a letter dated October 6, 1997, she applied to the District Office to prohibit the summoned person from operating machines and devices that are powered by internal combustion engines at night, unless they are further than 500 m (later changed to 600 m) from her House.
On January 10, 1998, the plaintiff brought an action for failure to act at the administrative court in Sigmaringen.
The district office informed the court that preliminary noise measurements should be carried out by the state trade supervisory office before a final assessment. This could take place in May 1998 at the earliest. The plaintiff had no health problems to fear; in this respect, reference should be made to the findings by the police station O. The summoned person did the harvest work during the daytime; In 1995 the plaintiff reported four disturbances during the night. Incidentally, according to a decision by the Munich Administrative Court, noise pollution caused by agriculture at night is to be accepted as socially acceptable.
In support of the complaint, the plaintiff stated that a delay in the decision by the authorities could not be justified. Reliable information on the noise emissions from the machines used could have been obtained from written information from the manufacturer, on the basis of which a sound technical report could have been drawn up. In the present case, it is not about a one-off noise nuisance, but about at least seven incidents per year. In addition, it is surrounded by numerous sources of noise. This applies to events in the gymnasium and festival hall as well as the operation of the tennis court and the sports center. The musicians' home also contributes to the noise nuisance. The Raiffeisenmarkt has goods delivered by heavy trucks three times a week at night between 2.30 a.m. and 5.00 a.m. A barbecue area to the southwest of their house leads to massive impairment of the night's sleep in the summer months due to excessively loud music and screaming users. In addition, she was exposed to the noise of two youth stalls. After all, she is additionally impaired during the day by the screaming children in the neighboring school playground. Against this background, she is not obliged to accept the disturbances caused by the harvests of the party invited.
On 08/10/1998 during the wheat harvest on the river. Nos. 174 to 176 orientating noise measurements are carried out by the State Trade Inspectorate in Sigmaringen. The average level on the plaintiff's property was 42 dB (A). On 09/10/1998, orienting noise measurements were also carried out during the grass harvest. From measurements during the harvest and the silage, an assessment level for the plaintiff's property of 42.4 dB (A) was calculated.
By decision of November 23, 1998, the District Office rejected the application for an order to be issued against the party summoned. At the same time, a fee of DM 2,798.20 was set, which corresponds to the total cost of the measurements. As a justification, it was stated that the District Office could only issue orders in accordance with the Immission Control Act if there were harmful environmental impacts - here: as considerable nuisance. That is not the case. The plaintiff lives in a former economic center of a farm. The surrounding area is characterized by farms and the associated apartments. It is therefore to be assigned to a village area according to § 5 BauNVO. In the measurements carried out, the reasonable noise levels (average level of 45 dB (A), noise peaks of up to 65 dB (A)) were undercut. Since the plaintiff had initiated the official act, the costs incurred were to be borne by her in full.
The plaintiff then pursued her claim and filed an objection to the decision of the district office. In support of this, she submitted that the measurements were not representative. In addition, the implementation of orienting noise measurements should be assessed as incorrect handling of the case, because more cost-effective possibilities of investigation by obtaining written information would have existed.
The plaintiff has applied for the decision of the Biberach district office of November 23, 1998 to be repealed and for the district office to be obliged to prohibit the party summoned from operating machines and devices that are powered by internal combustion engines between 10 p.m. and 6 a.m., unless this is the case that these systems are more than 600 m away from the plaintiff's house.
The defendant contested the lawsuit.
The summoned party did not submit a motion.
After an oral hearing in which Mr. B. from the trade supervisory office explained the two orientational noise measurements, the administrative court dismissed the complaint. As a justification, it stated that significant harassment, which is a prerequisite for official intervention, could not be ascertained. Because even if the noise limit values were exceeded during harvest work at night - which, by the way, cannot be assumed according to the measurement results - the plaintiff would have to accept that. The up to seven nightly harvest assignments presented - provided they are unavoidable and noise-friendly - are socially adequate in the agricultural sector. The lawsuit also remained unsuccessful with regard to the fees charged because the investigations carried out were necessary for the proper processing of the application.
On April 3, 1999, the plaintiff applied for permission to appeal against the judgment served on March 18, 1999. The Senate approved the appeal by resolution of September 22nd, 1999 in accordance with Section 124 (2) No. 3 VwGO. On October 12, 1999, the plaintiff essentially justified her appeal as follows: With regard to the protection of the night's sleep, it was unreasonable for her to accept nocturnal harvesting work several times a year, especially since she was exposed to other nocturnal sources of noise from her immediate vicinity and harvesting operations beyond the 10 p.m. are not necessary. Incidentally, the noise values were determined inappropriately because the measurements were not concealed and less powerful machines were used for the measurements, moreover in fewer numbers than for the regular harvest.
The applicant requests
to amend the judgment of the Sigmaringen Administrative Court of March 3, 1999 - 3 K 110/98 - to revoke the decision of the Biberach District Office of November 23, 1998 and to oblige the defendant to forbid the summoned party,
between 10 p.m. and 6 a.m. with operational noises to exceed the immission guide value of 40 dB (A), alternatively 45 dB (A), at the plaintiff's property,
In the most alternative, to operate machines and devices that are powered by internal combustion engines (in particular chopping machines, wheel loaders and tractors) between 10 p.m. and 6 a.m., unless these systems are more than 600 m from the residential building at J.-Straße 5 in p. The measuring point is the southwest corner of the building at J.-Strasse 5.
The defendant requests
dismiss the appeal.
In his opinion, the applicant's request is not sufficiently specific. In addition, the defendant considers the administrative court judgment to be correct and refers to his previous statements.
The summoned party does not submit a motion.
For further details, reference is made to the pleadings of the parties involved and the files of the Sigmaringen Administrative Court, the Biberach District Office and the Sigmaringen State Trade Supervisory Office available to the Senate.
The appeal approved by the Senate, justified in due form and in due time (Section 124a, Paragraph 3, Clauses 1 and 2 VwGO) and otherwise admissible is not justified. The administrative court rightly dismissed the complaint. The plaintiff is not entitled to the issuance of an official order against the summoned party or to a new decision on her application. Your application for annulment against the fee stipulated in the notification is also unsuccessful.
1. The pertinent main application made for the first time in the appeal hearing for an official order to prohibit the summoned person from exceeding an immission guide value of 40 dB (A) at night is unsuccessful because the plaintiff - regardless of other reasons for refusal - the level of protection assumed by it does not benefit a general residential area (40 dB (A)); rather, it can only refer to a protection level of a general village area or mixed area - insofar as the regulations of the TA Lärm are applicable at all (see below 2 b).
A nocturnal immission guide value of 45 dB (A) is reasonable for the plaintiff for the assessment level, which may not be exceeded by more than 20 dB (A) for individual short-term noise peaks (No. 6.1 TA Lärm). Because it can only refer to the protection level of a village area (cf. § 5 BauNVO). Contrary to the opinion of the plaintiff, it cannot (yet) be assumed that the immediate vicinity of your house has achieved the character of a de facto general residential area (cf. § 4 BauNVO). Even if it may be true that there are signs of a shift in use in the direction of residential use, the Senate has gained the conviction that the character of a de facto village area must still be assumed. He is based on the impressions in the oral hearing that took place in the plaintiff's place of residence, the panoramic photo ("village picture") that was inspected, the overview plan with identified agricultural uses in the files and the fact that despite the decline in the number of full-time farmers - according to the claimant, only two farmers are now active in the village itself - the agriculturally cultivated area belonging to the municipality has not been reduced overall according to the plausible statements made by the summoned party, which have not been contradicted. The classification as a de facto village area according to § 34 Abs. 2 BauGB does not presuppose that the existing agricultural or forestry operations are numerically or otherwise overweight (cf.VGH Bad.-Württ., Ruling of 08.10.1999 - aa Cit., With further references).
Since the factual prerequisites for a claim are already lacking, a claim to a new decision (section 113 (5) sentence 2 VwGO) - which is a minus in the main request - does not come into consideration.
2. The auxiliary request, which aims at an official prohibition of exceeding a nocturnal immission guide value of 45 dB (A) against the summoned party, is also unsuccessful.
a) The legal basis for such a request is the third-party protection provision of Section 25 (2) BImSchG if the harmful environmental impacts (Section 3 (1) and (2) BImSchG) caused by a facility (Section 3 (5) BImSchG) include human health endanger. The general applicability of this regulation does not conflict with § 38 BImSchG, even if the noise comes from chopping machines, tractors, combine harvesters and wheel loaders, since these are not used as vehicles for transport and transport in traffic, but as work equipment and therefore systems within the meaning of § 3 Paragraph 5 No. 2 BImSchG (see Jarass, BImSchG, 4th edition 1999, § 3 No. 62, § 38 No. 8). However, the provision cannot be used as a basis for claims because there is no risk of a health hazard. It is true that continuous nighttime exposure to noise can pose a health risk (cf. Senatsurt. Of June 8, 1998 - 10 S 3300/96 - NVwZ-RR 1999, 569 = VBlBW 1998, 424); In the present proceedings, however, there can be no question of continuous night-time exposure; rather, only isolated nocturnal disturbances due to harvesting work are asserted.
b) As far as the prevention of noise immissions below the threshold of health risk is concerned, the third-party protection regulation of § 24 sentence 1 i. In conjunction with Section 22, Paragraph 1, Clause 1, No. 1 or 2 BImSchG. According to Section 24 (1) of the BImSchG, the competent authority can issue the orders required to implement Section 22 of the BImschG in individual cases. In the present case, however - as the administrative court rightly recognized - the factual requirements of Section 22 (1) sentence 1 BImSchG, namely harmful environmental effects in the form of considerable nuisance, are missing.
For the determination of harmful environmental impacts in the form of considerable nuisance from plant noise (Section 3 (1) and (2) BImSchG), the standard of reasonableness applies (cf. Senate, judgment of June 8, 1998, op. Cit., With further details). As an expression of the requirement of consideration that characterizes the neighborly relationship, the term “reasonableness” describes the boundary marked on the basis of a weighing up of interests, beyond which annoying influences from affected neighbors already below the threshold of health protection no longer have to be legally accepted. The weighing of interests is largely subject to judicial assessment and is therefore a question of individual assessment. It represents an evaluative overall view and is based on the type of area and the actual conditions that are worthy of protection and the need for protection, whereby evaluating elements of conventionality, social adequacy and general acceptance can be decisive. Not only the necessary protection of the affected neighbors, but also the benefit of the disputed operation of the facility for the general public determines the reasonableness of the nuisance (see BVerwG, ruling of April 30, 1992, BVerwGE 90, 163 = DVBl. 1992, 1234 ; Senate, judgment of 21.09.1993 - 10 S 1735/91 - VBlBW 1994, 239, 243). According to these standards, the noise pollution threatening the plaintiff due to the nightly harvest work of the summoned party is reasonable.
The Senate assumes that the essential principles of the TA Lärm (dated August 26, 1998 - GMBl. P. 503) can also be applied accordingly in the field of agriculture to determine the reasonableness, although the TA Lärm according to No. 1 Paragraph 2 letter c is not applicable to agricultural facilities that do not require a permit (in this sense also Hansmann, in Landmann / Rohmer, Umweltrecht Volume 2, 3.1 TA Lärm No. 1, No. 15 f.). Thereafter, a claim for official intervention against the summoned party is out of the question. Exceeding the permissible immission guide values according to TA Lärm for a village area orMixed areas, as can be found in the immediate vicinity of the plaintiff's house (see above 1), have not been determined in the context of indicative measurements that were carried out at the request of the defendant and which the Senate can fall back on.
Rather, the measurement of the threshing of wheat on the river, carried out on August 10, 1998 between 6.30 p.m. and 9.15 p.m. at the plaintiff's house. Nos. 174 to 176 result in an average level of 42 dB (A) and a peak noise level of 55.2 dB (A). At the hearing, Mr. Schl. as the official informant, also explained plausibly that the determination of the continuous noise level was conservative, i.e. overestimating, because the measurement focused on the noise level that occurred when the combine harvester was driven three times across and then extrapolated, while the actual continuous noise from drives in the longitudinal direction of the property in relation to the ambient noise prevailing on the plaintiff's property (35 to 40 dB (A)) could no longer be clearly perceived. The official informants, Mr. B. and Mr. Schl., Further explained in a comprehensible manner that the prerequisites for a surcharge for special tonality of the noises did not exist.
Also on September 10th, 1998, no excesses of the reasonable noise values were found. For the grass chopping measured between 3:30 p.m. and 4:30 p.m. No. 808, loading onto trailers and removal, the plaintiff determined an assessment level of 36 dB (A), for the activities of consolidation with a shovel loader and bringing in the chopped material, measured between 4.10 and 4.30 p.m., a level of 41.2 db (A), an overall rating level of 42.4 dB (A). Failure to meet the relevant guide values becomes even clearer if one takes into account that the measurement reduction of 3 dB (A) provided for in monitoring measurements in accordance with No. 6.9 TA Lärm - as confirmed by both respondents at the hearing - has not been taken into account; Within the TA Lärm system, the determined assessment level must therefore be reduced by 3 dB (A) in each case.
The Senate - like the Administrative Court - was allowed to fall back on these orienting noise investigations and the explanations given in the oral hearing in the same way as on the result of a court-ordered expert report (see Rudisile, in: Schoch / Schmidt-Aßmann / Pietzner, VwGO , § 98 RdNr. 180 with further references); There was no reason to obtain a further expert opinion analogous to § 412 ZPO, since indications for the inappropriateness of the officially initiated measurements and calculations were not conclusively submitted by the plaintiff and are also not evident to the Senate.
The Senate does not share the concerns raised by the plaintiff, in particular in the context of its alternative application for evidence to obtain a judicial expert opinion. Insofar as the plaintiff complains that it was not measured at the immission location specified by the TA Lärm, namely the plaintiff's house, this assertion is made according to the measurement protocol from 08/10/1998 and the explanations by Mr Schl. in the oral hearing, the accuracy of which there are no doubts, not to. Rather, measurements were taken (among other things) on the plaintiff's house, and only the values determined there were taken into account in the result. The measurements on 09/10/1998 did not take place at the plaintiff's house, but - even when one wanted to assume full applicability of the TA Lärm also in the area of the measurement procedure in favor of the plaintiff - these regulations were not violated because According to A 3.1 Annex TA Lärm, deviations are permissible if - as here - extraneous noises at the actually intended measuring point prevent a meaningful measurement. The latter has been submitted by the defendant and has not been disputed by the plaintiff; Their reference to the possibility of a nocturnal noise-free measurement at the house cannot cast doubt on the admissibility of the chosen method, because realistic, representative measured values could only be determined during regular harvesting activities, which are usually during the day and only in rare exceptional cases - because it was scheduled at short notice - noise measurements would hardly be possible, carried out at night.
Insofar as the plaintiff considers the measurements to be incorrect and unrepresentative because they were carried out uncovered and with less use of machines than usual, these objections are not valid from the Senate's point of view. Because indications for a lack of representativeness of the measurements carried out have emerged after the hearing of witness K. and the explanatory explanations of the official informants B. and Schl. not surrendered to the Senate. During his questioning, the witness stated that his Claas Jaguar 840 forage harvester was used for the orientational noise measurements; Otherwise, the measurements were used in the same way and with the same number of transport vehicles as in other harvest operations for the plaintiff; He had operated the chopper - as always - at full throttle, otherwise it was not possible. The Senate has no doubts about the credibility of the witness; therefore there was also no reason to swear his oath (cf. § 98 VwGO in conjunction with § 391 ZPO; Damrau, in Munich Commentary on the ZPO, 2nd edition, § 391 No. 8). Doubts about the representativeness of the measurement for the wheat harvest were not substantiated; The Senate also has no reason to assume irregularities or deviations from the usual harvesting processes, especially since - as shown - the values were determined in a particularly conservative manner.
Under these circumstances, a further assessment was not only required ex officio (see above), but the alternative request for evidence to obtain a (further) expert opinion could also be rejected (Dawin, in Schoch / Schmidt-Aßmann / Pietzner, VwGO, Section 86, No. 58, footnote 92; Rudisile loc. Cit. Section 98, No. 174).
Incidentally, the permissible values would still be significantly below (after the required measurement discount of 3 dB (A)) if one were to assume in favor of the plaintiff that her house was located within a de facto general residential area. Because then there would be the case of a mixed situation, i.e. colliding different uses which, due to the requirement of consideration, require the formation of a (non-arithmetic) mean value (see e.g. BVerwG, ruling of 12.12.1975 - 4 C 71.73 - BVerwGE 50, 49 , 54; decision of 28.09.1993 - 4 B 151.93 - NVwZ-RR 1994, 139 f .; No. 6.7 TA Lärm). Since the immediate area in which the plaintiff lives - assuming that this is a de facto general residential area - on the one hand a planned mixed area, on the other hand the outdoor area characterized by agricultural use (cf. Senate, decision of 25.06. 1996 - 10 S 200/96 - NVwZ 1997, 1014), the plaintiff could at most benefit from a nighttime protection level of between 40 and 45 dB (A), which, given a determined maximum assessment level of 39.4 dB (A) - 42 , 4 dB (A) minus 3 dB (A) - would be clearly undercut.
If, therefore, more than insignificant excesses of permissible noise values are not to be expected on the basis of representative measurements, the auxiliary request fails not only insofar as it is directed at official intervention, but also insofar as it - as a minus - is aimed at a new decision by the defendant.
The application for a new decision would also remain unsuccessful if one wanted to assume that the permissible noise levels were to be feared in isolated cases. Then everything would indicate that - as the official decision also suggests - an intervention could be rejected because such nocturnal excesses, as far as they occurred during harvest, up to an assessment level of 55 dB (A) - regardless of the type of area given here - as rare events would have to be accepted (No. 7.2 and 6.3 TA Lärm). From the information provided by the witness, the plaintiff and the party summoned to the hearing, there are no indications that nocturnal harvest operations per year have even come close to the number of 10 relevant for rare events according to No. 7.2 TA Lärm. Rather, the information fluctuated between 0 and 7, depending on the statement and year. To the extent that the plaintiff wants to question the applicability of No. 7.2 TA Lärm by submitting that it is also disturbed by other nocturnal noise events on a total of at least 18 days a year , she remains unsuccessful. In this respect, there is insufficient substantiation; it cannot be replaced by simply naming the possible sources of noise, especially since the defendant submitted, without being contradicted in writing, that the trade inspectorate determined values of below 40 dB (A) when measuring the nightly noise from the noise source closest to the plaintiff (Raiffeisenmarkt) .
Incidentally, the result would be no different if the TA Lärm were not considered to be applicable to the specification of the reasonableness criteria. Then the limit of reasonableness would have to be determined by a judge in each individual case. Even then, the Senate would affirm the reasonableness, since at least in village areas the seasonal noise pollution emanating from a company for the treatment and processing of agricultural and forestry products (§ 5 Abs. 2 Nr. 4 BauNVO), which arises during the harvest, in The scope required for this must be accepted (VGH Bad.-Württ., judgment of 08.10.1999 - 8 S 138/99 - VBlBW-Ls 2000, Appendix 1, B 2) and the work of the party summoned should be kept within this framework.
3. Since - as shown - the prerequisites for intervening are already lacking, the highly alternative application for an obligation to issue a prohibition order remains unsuccessful.
4. The plaintiff cannot penetrate her application for annulment of the fees set by the administrative act. The administrative court rightly stated that it was appropriate to carry out indicative measurements in the present case and that the costs incurred and calculated for this were not excessive. According to the above explanations regarding the usability of the official measurements, there are no indications of incorrect handling, as claimed by the plaintiff.
The decision on costs is based on Sections 154 (2) and 162 (3) VwGO. There was no reason to declare the extrajudicial costs of the party summoned to be reimbursable, as he did not take part in the risk of litigation costs due to the failure to submit an application (cf. Section 154 (3) VwGO).
The revision was not to be allowed because none of the prerequisites of Section 132 (2) VwGO were met.
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