Noise Pollution is one of the forms of pollution that affects citizens in an immediate way. This fact leads to a massive number of complaints from citizens before the administrative authorities and courts. Considering this, the number of court decisions concerning the environment was, until very recently, almost only related to Noise Pollution conflicts. In fact, one of the problems related to Noise Pollution in Portugal is the prolification of competent authorities that are able to receive this sort of complaints from affected citizens, which prolification contributes to a general clime of impunity for the transgressor entities. For example: (a) when the Noise Pollution comes from the activity of a commercial or hotel entity or from amplifiers or any sound equipment that projects sounds to the public air, the competent authority will be the local or national police department; (b) when Noise Pollution comes from automobiles or motorbikes, the competent authority is the Traffic Brigade of the National Police or the Traffic Department of the Local Police; (c) when the Noise Pollution comes from airplanes, the competent authority is the General Direction of the Civil Aviation and ANA Airports and Aerial Navigation (public company); (d) when the Noise Pollution exists at any working place, the competent authority is the Labour General Inspection; (e) when the Noise Pollution comes from any kind of works, the competent authority is the Environment General Direction or the Local Authorities; and, finally, (f) when the Noise Pollution is caused by a public show or disco/dancing, the competent authority is the Spectacles General Direction. As one can see, this situation leads to confusion and discourages the enforcement of Noise Pollution laws and regulations.
THE ENVIRONMENTAL MAIN LAW
Nevertheless, there are important laws and regulations concerning Noise Pollution aiming at its reduction and control. Law n. 11/87 "The Environmental Main Law"("EML") [see our previous contributions] states, at article 22, that the struggle against Noise Pollution is aimed at the safeguard of health and the well being of the population and will be enforced through the implementation of the major following measures:
- the settlement of maximum sound levels for the background noise;
- reduction of noise at source through the settlement of maximum noise emission limits;
- introduction of new construction techniques to avoid the noise propagation both outside and inside buildings;
- public awareness and information.
After the implementation of the EML a Noise General Regulation was enacted by Decree Law no. 251/87 (amended by Decree Law nõ 292/89). This regulation states that all buildings, industries, commerce and services, as well as all equipments, shows, traffic, sound signals and "all the sound emitting activities in general that can cause disturbance" must be subject to a previous licensing or authorization. The obligation to request an authorization or a license has of consequence the imposing of fines against any entities which do not comply with such obligation. Such fines can vary between PTE 50.000$00 and PTE 3.000.000$00.
A number of other laws or regulations have been enacted such as Decree Law no. 271/84 (concerning the construction and installation of discos/dancings and public shows in the open air and similar activities); Regulation no. 344/86 (control of Noise Pollution emitted by aircrafts); Regulation no. 77/96 (enforcement of Council and European Parliament Directive nõ 95/27/EC, of June 29, on the soundpressure level of airborne noise at the operator's position of excavators, dozers and loaders and other earth moving machines used on civilengineering and building sites).
CRIME OF NOISE POLLUTION
The Portuguese Criminal Code now defines, in Article 279, a Crime of Pollution as follows:
"1. Whosoever, to an unacceptable degree: a) (...) b) (...) c) Causes Noise Pollution through the use of technical appliances or installations, particularly from machines or terrestrial, fluvial, marine or airborne vehicles of whatever kind; Shall be sentenced to imprisonment of up to 3 years or to a fine of up to 600 days. 2. If the conduct referred to in no. 1 is carried out through negligence, the agent shall be sentenced to imprisonment of up to 1 year or to a fine. 3. The pollution occurs to an unacceptable degree whenever the nature or the amount being discharged or introduced is contrary to rules or restrictions set down by the competent authority in accordance with legal and regulatory provisions under sanction of application of sentencing as laid out in this article."
Some critics to this article of the Criminal Code were made in our previous article "Water Pollution in Portugal".
As we stated above, there are practical problems that make very difficult to a citizen to know the competent public authority for which to appeal when a Noise Pollution occurs. Furthermore, police departments do not have the equipment as the necessary technical knowledge to determine or control the sources of Noise Pollution in a short period of time. Likewise, in most cases Local Authorities, are in no financial position to purchase the necessary equipments for the evaluation of sound levels.
The contents of this Article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
For further information contact Ant1/2nio Esteves da Fonseca or Manuel de Andrade Neves, Abreu, Cardigos & Partners, Lisbon, Portugal.