A terrace? Ban shouting in the zoning plan!

A ruling by the Administrative Law Division on June 13 shows that it is possible to include in a zoning plan concrete rules of conduct and (indirect) noise standards for the noise generated by people on a terrace. This offers opportunities to allow a terrace in places where this did not initially seem acceptable.

The voice sound of visitors to catering establishments often gives rise to (legal) debate. No maximum noise standards apply to the voice of people on an unheated and uncovered terrace on the basis of the Environmental Management Act. However, local residents may experience nuisance from that noise. Yesterday, the Division ruled in a ruling (ECLI:NL:RVS:2018:1942) that it can be included in the zoning plan that the staff of a catering establishment must intervene if visitors shout loudly (louder than 95 dB(a) and, if necessary, even remove these visitors from the terrace. In that case, loud screaming people no longer need to be taken into account in the acoustic study.

Noise standards for hospitality establishment

Regarding noise pollution resulting from business activities, the Environmental Management Act applies (among other things). This includes various noise standards that businesses must comply with. Application of the noise standards for voice noise on terraces would in many cases make a terrace impossible because that noise is generally not shielded and therefore burdens directly adjacent facades. Voice noise on terraces on streets or other public spaces is therefore deliberately excluded from the noise standards in the Activities Decree on Environmental Management.

Voice noise and acceptable living environment

The Environmental Management Activities Decree focuses on controlling environmental effects and does not necessarily require the same level of protection as an acceptable living and working environment, whereas an acceptable living and working environment is the yardstick for a zoning plan. Therefore, when establishing a zoning plan, the municipal council cannot suffice with only a reference to the standards included in the Activities Decree Environmental Management, but must determine, based on the circumstances of the case, whether those standards also guarantee an acceptable living and working environment in that specific case.

When adopting a zoning plan, the municipal council must consider all relevant aspects, including the noise from a terrace. Because voice noise is not regulated by concrete standards in the Environmental Management Activities Decree, it is difficult for municipalities to establish a clear framework for this in a zoning plan procedure and to enforce it. Because the worst possible nuisance may then have to be assumed, this may result in the terrace not being permitted at all.

Conduct rules in the zoning plan

In the matter in Reuver, the municipality wished to include a terrace in the zoning plan after all. It could not be ruled out that persons on the terrace would (incidentally) shout and that would lead to high noise levels at the adjacent residence. The municipality solved this by including in the zoning plan that the terrace may only be used if the staff is instructed on how to prevent loud shouting and persons who shout loudly (louder than 95 dB(a) are addressed, warned and, if necessary, removed.

This regulates in the zoning plan something that is in fact (deliberately) not regulated in the Environmental Management Activities Decree. Because of this rule, the municipality can still intervene if it appears that people who are shouting too loudly are staying on the terrace and are not being removed. This also means that the acoustic investigation to be carried out can assume that loudly shouting people are not present on the terrace.

The Division rules that the acoustic study can indeed assume that loudly shouting people will not be present on the terrace. With this, the Division rules (implicitly) that it is permitted to include in the zoning plan rules of conduct for the staff of a catering establishment, even if these rules of conduct in fact create a noise standard that the legislator deliberately did not include in the Activities Decree Environmental Management.

Opportunities for practice

With such a regulation it can therefore be substantiated that a terrace and the accompanying voice noise do not result in an unacceptable living and working environment, while without such a regulation this may not be possible. If such a regulation is included in planning regulations, the acoustic study and those planning regulations must be properly coordinated.

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