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03 December 2007
The Swiss Federal Supreme Court regularly decides cases about the installation of antennae for mobile communications, noise emanating from public facilities such as restaurants and odour nuisances caused by factory plants. Recent decisions of the court addressed the following questions:
Swiss federal environmental laws regulate the installation and operation of telecommunications antennae, including the protection of the public against radiation. Therefore, neither cantonal nor local authorities may enact further regulations on this issue. The federal laws provide that antennae may be banned only in order to protect the environment and not for any other reasons.
According to the Supreme Court, only certain circumstances warrant the banning of telecommunication antennae from certain locations for reasons other than the protection of the environment and related interests. The court points out that the competent authority must:
In addition, the creation of particular 'land use zones' - for instance, zones where telecommunications antennae are allowed and zones where they are not allowed - must be based on a legal regulation. Only under these circumstances it is possible to ban telecommunications antennae - for example, in order to preserve the particular character of a village.
Swiss environmental laws allow for the enactment of further legal provisions in order to limit noise emissions, provided that these are technically, economically and operationally acceptable for affected persons. According to the court, an evaluation of the impact of legal provisions on noise restrictions must consider all affected enterprises, not only that of a single proprietor. The financial situation of a single business is not relevant to an assessment of whether the impact of particular provisions is acceptable.(2) The court held that the restriction of the opening hours of outdoor facilities (eg, terraces and patios) after midnight from Sunday night to Thursday night does not excessively affect the profitability of a coffee house or bar. The court further pointed out that after an outdoor facility has closed, it is still possible to serve guests indoors.
As in the case of noise restrictions, Swiss environmental laws allow for the limitation of odour nuisances, provided that this is technically, economically and operationally acceptable for affected persons. According to the court, neighbours of factory plants that cause bad odours must tolerate such odour emissions, which have only a low environmental impact. The so-called 'precautionary principle' of environmental law aims to limit odour nuisances but not to eliminate them entirely. The court held that for low emission values the principle of proportionality also applies, which is based directly on the Swiss Constitution. Nevertheless, the court stated more precisely than in previous decisions that in the case of low emissions which can be reduced considerably through small measures, it is reasonable to request such measures. In contrast, if low emissions cannot be reduced by small measures, then the neighbours must tolerate the emissions.(3)
For further information on this topic, please contact Max Walter or Michael Lips at Pestalozzi Lachenal Patry by telephone (+41 44 217 91 11) or by fax (+41 44 217 92 17) or by email (email@example.com or firstname.lastname@example.org).
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