When is Noise a “Contaminant”?

AgriLaw: October 2009

Ontario’s Environmental Protection Act (EPA) prohibits the discharge of a “contaminant” into the natural environment if the discharge may cause an “adverse affect”.  The EPA broadly defines “contaminant” to include “any solid, liquid, gas, odour, heat, sound, vibration, radiation or combination of any of them resulting directly or indirectly from human activities that causes or may cause an adverse affect.”  The statutory definition of “adverse affect” includes “impairment of the quality of the natural environment for any use that can be made of it.”  Does noise which impacts the interior of an adjacent property contravene these provisions?

In a recent decision of the Ontario Environmental Review Tribunal, an order had been issued by the Ministry of Environment (MOE) restricting night-time noise emanating from a dairy facility which was interfering with the sleep of neighbours in adjacent residential properties.  The dairy applied to the Tribunal for a stay of the order on various grounds, including that the noise of which neighbours complained was not impairing the quality of the natural environment since any impact was experienced only in the interior of the neighbouring homes.

In describing the nature of the problem, the Tribunal states:

“The evidence is clear that the primary source of night-time noise emissions from the Site is the operation of (the dairy’s) delivery trucks which are started up between 3:00 a.m. to 4:00 a.m. in order to power the refrigeration units in these vehicles and left to idle until approximately 5:00 a.m. when the trucks are loaded and then driven off-Site.”

The home of one of the complaining neighbours was approximately 4.5 metres from the dairy site.  Noise impacts as measured at this property were in excess of applicable MOE sound limits.  Family members residing at this property complained of sleep disorders, aggravation of Crohn’s disease, cognitive impairment and depression.

In rejecting the dairy’s argument and refusing the requested stay, the Tribunal held:

“(The dairy) argues that the interior of the (neighbouring) home is not part of the ‘natural environment’, as defined in the EPA, because it is a building enclosing the air and land within it, and that it is the interior of the building that is affected by the noise.  However, the issue … is not, simply, whether the contaminant has been discharged to the interior of a building.  Rather, the issue is whether the quality of the natural environment has been impaired ‘for any use that can be made of it’ …

“In this case, as ‘natural environment’ includes any part of air, land and water, in Ontario, it includes consideration of the (neighbouring) property as a whole.  Therefore … the Tribunal must consider any use of the (neighbouring) property as a whole, which in this case, broadly includes consideration of this property for use as the site of a residential dwelling.  Consequently, the Tribunal must consider whether the noise discharged to this property will impair the land or air within the entire property for its use as the site of a residential dwelling.  One of the indicia of such impairment, is whether the residential dwelling on the property is no longer suitable for normal activities of daily living, which include sleeping.”

Accordingly, the Tribunal did not limit its consideration only to the interior of the home where the impact of the noise was experienced.  The Tribunal took into consideration the impacts of the noise on residential use of the property in determining that the noise from the dairy trucks interfered with the neighbours’ use of the natural environment.