"Municipalities are guarantors of the right to peace and quiet against noise pollution" Constitutional Court

It is common in the commercial world to find establishments that, in the use and execution of their commercial activity, do not correctly or exactly comply with the regulations imposed for the proper development of the commercial purpose[1].

The infringement of the regulations on sound intensity[2] is one of the cases in which commercial establishments recurrently incur and which represents a great headache for neighbors and residential areas adjacent to them.

Well, in the face of this problem and the latent need for protection against noise pollution generated by high noise levels caused by bars, commercial premises, nightclubs, among others, the Constitutional Court has specified that sound, as an agent that pollutes the environment, can directly violate the fundamental rights to privacy and peace and quiet of people living near these establishments, since said noise constitutes intrusion and disturbance in people's homes, thus preventing them from enjoying a space free from any external interference[3].

Indeed, such exposure to such high decibels of sound is clearly a total contravention of public health, which not only implies the violation of the privacy and tranquility of neighbors, but is also a potential source of health effects and reduction in their quality of life, a plural and collective damage that obtains as a counterpart the economic well-being of individuals, a fact that is contrary to the principles of the Social State of Law.

It is thus concluded that, in situations where sound is emitted above the permitted level by commercial establishments, the right to a healthy environment and auditory health must be guaranteed by express constitutional mandate, provided that its safeguard protects the fundamental rights of neighboring residents to their privacy, tranquility, health, and dignity.[4]

RESPONSIBILITY OF THE MUNICIPAL ADMINISTRATION

As established by the Political Constitution, it is the responsibility of mayors, in their capacity as the first police authority of the municipality, to ensure compliance with the legal system and the preservation of public order. If so, it is primarily up to the municipal administration to exercise legal control over commercial establishments in terms of compliance with current regulations for them (Law 232 of 1995 and Decree 1879 of 2008) and the effects on public order that they may cause, such as the emission of noise above the permitted decibels[5].

Thus, in the event of non-compliance with the regulations on sound intensity (Resolution 8321 of 1983 and Resolution 0627 of 2006), Article 4 of Law 232 of 1995 provides the municipal administration with procedures and tools to persuade owners of commercial establishments that do not comply with current regulations to comply with legal requirements as soon as possible, under penalty of sanctions or definitive closure of the establishment.

Similarly, numeral 44.3.3.2 of Article 44 of Law 751 of 2001 provides that it is the competence of the municipality regarding the health sector and the general social security system in health to “monitor the environmental conditions that affect the health and well-being of the population generated by noise, pet ownership, garbage, and odors, among others.”

It is therefore established that, as set forth by the Constitutional Court in its Judgment T-099 of 2016, the responsibility of the municipal administration to ensure compliance with the legal system and the preservation of public order consists of adopting preventive and sanctioning measures in relation to public establishments that do not meet the legal requirements in the matter, so that in this way the preservation of public order and the general interest can be guaranteed.