The new year, noise pollution and maximum tolerance (First of two-parts)

By Atty. Eduardo T. Reyes III

 

As the year 2020 is drawing to a close, tragedy and irony struck when a policeman felled a mother and son with government-issued bullets fired from a gun purchased with public funds supposedly intended to protect the citizenry. As if 2020 was not bad enough with covid-19 striking at the very core of humanity- separating families, disrupting work cycles and iterations, and sowing fear not even terrorists could foment, a minor firecracker incident had sparked the argument between neighbors that led to the sad spectacle of the mother embracing her son as the shots rang out killing them both on the spot.

While there will surely be diametrically opposed versions from the two (2) sides relative to the incident, the fact remains that lives had been snuffed out only because tolerance and patience of a neighbor’s activity had run on short supply.

We live in a vibrant democratic society where each one should enjoy utmost freedom of movement and action. Philippine law further provides that in respect to property rights, the owner enjoys everything on the surface as well as underneath his/ her property which is esoterically known as the principle of “ad coelum”. And yet this right over property is not absolute.    “The old maxim, sic utere tuo ut alienum non laedas- use your own property so as not to injure another’s- set outer limits on the freedom of landholders, although within those parameters the owner had enormous discretion.” (see p. 157, A March of Liberty: A Constitutional History of the United States by Melvin I. Urofsky, First Edition 1988, Knopf, New York).

Nevertheless, in the hierarchy of rights, the “right to life” is always far more important than the “right to property”.

The tragedy in Tarlac does not only leave a painful lesson on impudent gun-handling: it also constrains one to reexamine the level of patience and tolerance that is needed in regard to his/ her neighbor’s activities on a daily-basis even on much less violent proportions.

New Year celebrations had always been characterized by noise from firecrackers and rowdy psychedelic fireworks that peacock in the skies. But since everyone seems conditioned to the noise, everyone’s predilection is to welcome the new year with ears benumbed. While for the rest of the year, neighbors succumb to one another’s noise ranging from the benign loud music to the insalubrious videoke-singing where the decibels are heightened by every shot of cheap whiskey gulped down the vocal chords.

When does music emitted from a sound system, for instance, morph into noise pollution that becomes legally objectionable for being a nuisance?

In Frabelle Properties Corp. v. AC Enterprises, Inc. G.R. No. 245438. November 3, 2020, obviously a very recent decision by the Supreme Court (SC), reasonable tests had been applied to determine how far noise from a neighboring estate can still be deemed within tolerable limits.

“This Court has found that the reasonable use of one’s property is dependent as well on the locality and character of surroundings. Guided by foreign jurisprudence, we now consider the locality and character of surroundings of the properties involved. In Coventry, the character of locality factor was determinative on the court’s assessment of nuisance. The court emphasized that the starting point in a nuisance claim is the “proposition that the defendant’s activities are to be taken into account when assessing the character of the locality.” The injurious effect of a defendant’s activity would depend greatly on the circumstances of the locality where it actually occurs. Feliza Building and Frabella I Condominium are located in the bustling Legaspi Village at the heart of the Makati Central Business District.  In any urban and commercial area, noise is expected from the business activities, passing vehicles, construction and development, and residents and commuters. Despite the efforts made to minimize the recording of external noise in the noise pollution tests conducted on Feliza Building, still some noise was recorded and contributed to the resulting reported noise levels. The noise entering Frabella I Condominium is not only from the blowers of Feliza Building, but a combination of noise naturally expected from a very busy area where commercial activities are prevalent. X x x”

And so the first among many factors to be considered is the “character of the locality”. If one’s place of abode is snuggled in the midst of a “bustling urban or commercial area”, noise from business activities (like foot and car traffic and even commercial jingles) are to be expected. However, the SC continued that “x x x While noise is expected given the locality and character of the surroundings, it must not be more than those ordinarily expected. Otherwise, it shall be considered a nuisance”.

Invoking its previous ruling in AC Enterprises, the SC pronounced in Frabelle Properties Corp. the general rule and carved-out the exception, as follows:

(Gen. Rule) Persons who live or work in thickly populated business districts must necessarily endure the usual annoyances and of those trades and businesses which are properly located and carried on in the neighborhood where they live or work.

(Exception) But these annoyances and discomforts must not be more than those ordinarily to be expected in the community or district, and which are incident to the lawful conduct of such trades and businesses. If they exceed what might be reasonably expected and cause unnecessary harm, then the court will grant relief. (Citation omitted and emphasis supplied)”

The bottom line therefore is that the location of one’s property may allow for some noise to be louder and rowdier such as in a busy commercial area. This comes as a prize of progress and development and of moving forward towards a more vibrant economy. Those with entrepreneurial spirit cannot be stifled into silence in their most-legitimate activities in pursuit of maximizing business schemes and strategies.

But the noise cannot be too much as to impinge on another’s health, well-being or sanity. A home is a home regardless of its location; and sleep and rest are so priceless that they are not to be compromised in any and all circumstances.

Mindfulness, awareness, tact or circumspection, respect, and even love for the neighbor and the community would be key factors to consider in our day-to-day activities in order to avoid offending or annoying sensitivities and sensibilities.

This segue ways us to the next test to determine noise pollution which is: “that of a person of ordinary sensibilities”- not that of the extremely sensitive, the irritable or irascible, nor the calloused, the benumbed or the carefree.

(Please watch-out for part 2 of this series).

 

(The author is the senior partner of ET Reyes III & Associates- a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).