PLANNING FOUNDATIONS
2.1.1 Pollution control rights

The "Act on the Prevention of Harmful Effects on the Environment Caused by Air Pollution, Noise, Vibration and Similar Phenomena", in short "Federal Immission Control Act" (Bundes-Immissionsschutzgesetz/BImSchG) plays a key role in noise control as its purpose is to "protect human beings, animals and plants … against any harmful effects on the environment and to prevent the emergence of any such harmful effects" (All quotations of the Federal Immission Control Act in this manual are taken from the translation provided by the Federal Ministry for the Environment, Nature Conservation, Building and Nuclear Safety (see the Bibliographical references in chapter 8); please note that the official version is the German text – the English translation of the Act is for information purposes only). This act enshrines both the polluter pays principle and the principle of precaution. It is also characterized by a wide scope.

The Federal Immission Control Act is a federal act implemented by the Länder governments. The Ordinance on the Responsibilities for Immission Control Matters (Immissionsschutz-Zuständigkeitsverordnung/ImSchZuVO) by the Land of Baden-Württemberg contains the responsibilities of the different local authorities for the implementation of the Federal Immission Control Act. These responsibilities cover above all the licensing for the construction and operation of installations, their monitoring, the determination of emissions and immissions as well as subsequent orders.

Subsequent orders occur in the context of complaints for example, with the "best available techniques" and the aspect of technical "proportionality" being important standards of assessment. Other important terms within the Federal Immission Control Act are "harmful effects on the environment" as well as "installations", which in turn are divided into installations "subject to licensing" and those "not subject to licensing".

The Ordinance on Installations Subject to Licensing (Verordnung über genehmigungsbedürftige Anlagen, 4th Federal Immission Control Ordinance) with its index of installations subject to licensing plays a significant role in practice.

According to § 3 para. 5 of the Federal Immission Control Act, installations are:

1. any operating plants and other stationary facilities,
2. any machines, equipment and other non-stationary technical facilities as well as vehicles and craft unless they are subject to the provisions of section 38 below (i.e. unless they take part in public transport, e.g. forklifts) and
3. any premises used to store or deposit materials or to carry out work likely to cause emissions, with the exception of routes used for public transport.

The definition of the installation term shows that it is not restricted to commercial facilities (operating plants) but also covers the private and domestic domain as well as leisure time, sports and hobby.

Besides the above-mentioned definitions, the following provisions within the Federal Immission Control Act are relevant for noise abatement issues:

• the provisions on the construction and operation of installations (§§ 4 to 31a of the Federal Immission Control Act),
• the provisions on the nature of installations, substances, products, fuels and lubricants (§§ 32 to 37),
• the provisions on the nature and operation of vehicles and craft, construction and alteration of roads and rail tracks (§§ 38 to 43),
• the provisions on noise abatement planning (§§ 47a to 47f) and
• the provision on planning (§ 50).

The planning principle as standardized in § 50 of the Federal Immission Control Act is binding for all planning authorities on the national, federal state and municipal level: "In the case of regional planning projects and associated measures, the land earmarked for specific types of use shall be zoned in such a manner that harmful environmental effects are kept to a minimum on areas that are exclusively or predominantly used for residential purposes as well as on any other areas worthy of protection."

This provision establishes a close link between pollution control rights and land use planning, an important aspect of municipal noise protection. Municipal concerns are equally affected by Part VI of the Federal Immission Control Act (§§ 47a to 47f "Noise Abatement Planning"), particularly as municipalities are responsible for the drawing up of noise action plans (see chapter 6)

Technical details on the implementation of the Federal Immission Control Act are laid down in ordinances and administrative regulations. The Federal Immission Control Act contains the following ordinances and administrative regulations on noise issues:

16th Federal Immission Control Ordinance: "Traffic Noise Ordinance" (Verkehrslärmschutzverordnung)

18th Federal Immission Control Ordinance: "Ordinance on the Prevention of Noise from Sports Facilities" (Sportanlagenlärmschutzverordnung)

24th Federal Immission Control Ordinance: "Ordinance on Road Noise Protection Measures" (Verkehrswege-Schallschutzmaßnahmenverordnung)

32nd Federal Immission Control Ordinance: "Ordinance on Equipment Noise Protection" (Geräte- und Maschinenlärmschutzverordnung)

34th Federal Immission Control Ordinance: "Ordinance on Noise Mapping" (Verordnung über die Lärmkartierung) 

Sixth General administrative regulation to the Federal Immission Control Act: “Technical Instructions on Noise” (TA Lärm)

The Federal Immission Control Act does not regulate building noise. But as building sites are installations subject to licensing according to pollution control rights, the authorities can issue orders on building noise abatement measures on the basis of § 22 of the Federal Immission Control Act. The assessment foundation for this decision is the General Administrative Regulation on Building Noise Abatement – Sound immissions – (Allgemeine Verwaltungsvorschrift zum Schutz gegen Baulärm – Geräuschimmissionen – /AVV Baulärm), which dates from 1970.

What does not belong to the scope of the Federal Immission Control Act is aircraft noise, which has its own act (see section 3.2).