Conservatory must close windows

In a ruling (ECLI:NL:RvS:2017:2389) of September 6, 2017, the Administrative Law Division of the Council of State (further: the Division) ruled that far-reaching measures must be imposed on the Utrecht Conservatory to prevent noise pollution for local residents.

Nuisance

The Utrecht Conservatory of Music is located in the heart of Utrecht's city center, and students' practice there causes noise pollution for local residents. The building at Mariaplaats 27-28 is not well insulated throughout and students regularly practice with the windows of the classrooms open. Apparently the quality of the music is not such that local residents turn a blind eye (or an ear) to it. A request for enforcement action was initially rejected, but the court ruled that the noise study underlying the rejection was unsound.

Sound Survey

Mayor and aldermen subsequently commissioned a new study. Based on this new noise study, a measure was still imposed. The study showed that if a particular music room were properly insulated and if the windows were kept closed, the noise standards would be met. The mayor and aldermen determined that the room had to be insulated (made-to-measure regulation) and also imposed an order under penalty. The mayor and aldermen also stipulated that the windows had to be closed when music was being played (made-to-measure regulation), but did not impose an order for incremental penalty payments.

Neighbors felt that this injunction should not be lacking. They also felt that it should be prescribed much more concretely how then windows should remain closed.

Principle duty

The Department reiterates the principle duty to enforce. If there is a violation, action must be taken against it. Merely imposing the obligation to keep the windows closed when making music is then insufficient. This also requires a coercive measure. After all, it is certain that when music is played with open windows, noise standards are exceeded. Since it has been established that a violation exists, only special circumstances can prevent enforcement action. Those special circumstances do not exist.

How the new requirement (keeping windows closed during the production of music) is met is up to the conservatory. Mayor and aldermen did not have to prescribe that the windows should be fitted with locks and an alarm. An enforcement action must clearly define the goal (meeting the standards, in this case by only producing music when the windows are closed), but need not go so far as to precisely define the manner in which that goal must be achieved.

Conclusion

It is already a considerable step to prescribe that windows must be closed when music is played in order to meet noise standards, but apparently this was the only way to meet noise regulations. Further prescribing how the windows must be kept closed is out of the question; that is up to the conservatory itself.