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

By Atty. Eduardo T. Reyes III

 

The unfortunate incident in Tarlac this December brought to the fore the colliding interests between the right to create noise and the right not to tolerate noise. (But of course, as already emphasized in part 1 of this article, resorting to violence is never justified even under the impetus of this conflict).

The second legal test to determine noise pollution, therefore, is: “that of a person of ordinary sensibilities”- not that of the highly sensitive, irritable or irascible, nor the calloused, the benumbed or the carefree.

It becomes apparent that the law on nuisance attempts at hitting that healthy balance between the extremely sensitive and the benumbed. This is also a lesson on tolerance in dealing with our neighbors. Thus:

“X x x Ultimately, the determining factor is that the noise is of such character as to produce actual physical discomfort and annoyance to a person of ordinary sensibilities. In Velasco, we ruled that the noise from defendant’s substation transformers was a nuisance, being of a much higher level than the ambient sound of the locality and having aggravated plaintiff’s medical condition. We reached this decision finding that actual physical discomfort and annoyance was proven through a host of expert witnesses and voluminous medical literature, laboratory findings and statistics of income.

In determining what is reasonably acceptable and what is invasive to a community, the court in Rattigan appreciated the evidence that being a residential community, there was implicit intolerance of the activities of defendant. Moreover, the plaintiff presented expert testimony that showed how one who might otherwise have rented Edgewater to decline to do so because of defendant’s activities.”

“X x x It is not enough that a person of peculiar temperament, unusual sensibilities or weakened physical condition, may be affected. Nor is a noise protected if persons of exceptional strength and robustness, or whose faculties have become benumbed by close business or other experience with it, are not disturbed. The pertinent inquiry is whether the noise materially interferes with the physical comfort of existence, not according to exceptionally refined, uncommon, or luxurious habits of living, but according to the simple tastes and unaffected notions generally prevailing among plain people. The standard is what ordinary people, acting reasonably, have a right to demand in the way of health and comfort under all the circumstances. The number of people concerned by the noise and the magnitude of the industry complained of are both elements entitled to consideration in reaching a conclusion as to the fact.”(Emphasis and underscoring supplied)

This test, therefore, is a paradox.

On the one hand, we ought to be very sensitive with our neighbor’s sensibilities and yet on the other, we cannot be too fragile, keen, or overly perceptible when it comes to the activities next-door.

And yet the legal test is not objective enough to be measured by any instrument. Noise is not only about decibels or volumes. It is also about timing, occasion, and necessity.

Introspection will be key in answering this riddle. If we can confine our noise, let alone every activity within the parameters of our own compound, then each one will be placed in better stead. If it is not really necessary that our noise would have to reverberate in the community, then let it not.

Playing music (regardless of the genre), or worshipping God (regardless of religion) does not have to be amplified through blaring speakers. We ought to remember that music only suits one’s taste and punctiliousness while God hears prayers even if done in whispers.

Society is one of those composite things in life that keeps on evolving. Its complexities will always be a puzzle as we move forward.

If there is one good thing that the pandemic had taught us, it is the lesson of tucking ourselves in, in our own homes, hemmed-in with our families and loved ones and minding our own business.

At the height of the spread of infections, we were in such fear of catching the virus that we kept our noise to the minimum. There was peace and quiet in the streets, the neighborhood, and everywhere.

Fear and sickness could be healthy reminders about humanity, self-restraint, the love of neighbor, and maximum tolerance in dealing with one another.

As we look forward to 2021, and endeavor to shake off the bad feng shui of 2020, the challenge is to reexamine the noise within us. Perhaps it is that noise that needs to be minimized – if not completely muted- to better our chances of diminishing the ruckus in the community.

Wishing everyone a much better year than the one we just had.

Happy New Year to all DG readers!

 

(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).