The Ontario Ministry of the Environment (“MOE”) published on October 21, 2013 a new noise guideline which consolidates and replaces the previous guidelines dealing with both land use planning and the approval of industrial and commercial facilities. A draft of the guideline, “Environmental Noise Guideline – Stationary and Transportation Sources – Approval and Planning: Publication NPC-300” (“NPC-300”), was first published by the Ministry in November 2010. After a three-year consultation and consideration process, NPC-300 has been revised, released and is now applicable.
One of the primary purposes of NPC-300 was the elimination of the inconsistencies between the noise criteria to be used in land use planning decisions (found in Publication LU-131, “Noise Assessment Criteria and Land Use Planning, October 1997” (“LU-131”)) and the criteria used by the MOE when it determines whether or not to grant an Environmental Compliance Approval (“ECA”) (formerly known as Certificates of Approval) to an industrial or commercial facility.
LU-131 provided guidance to municipalities and, ultimately, the Ontario Municipal Board (“OMB”) in situations where a new noise sensitive land use was being considered in proximity to either established facilities that emitted noise or transportation noise. It provided the specific criteria to be used when a new noise sensitive land use was being created and, conversely, when a noise generating land use, such as an industrial facility, was being proposed near to existing noise sensitive land uses, such as residential neighbourhoods.
NPC-205 and NPC-232 were used whenever an industrial or commercial facility which emits sound sought an ECA for the first time or because of an expansion or change to its processes. NPC-205 applied to Class 1 and 2 (urban) areas while NPC-232 applied to Class 3 (rural) areas.
There has been concern that the guidance provided by LU-131 could result in sound levels at a noise sensitive use (such as a residential building) which are higher than those which NPC-205 and NPC-232 would permit. The result could be a noise sensitive land use being approved in proximity to an industrial use which would immediately become non-compliant with its existing approvals. The situation would be exacerbated if that industry needed an amendment or new EPA because it wished to expand or change its processes. Even if it could maintain the same level of sound at that new noise sensitive land use, it would theoretically be unable to obtain its ECA because NPC-205 and NPC-232’s requirements were more stringent (with lower maximum limits).
NPC-300 replaces LU-131, NPC-205 and NPC-232 in one document. NPC-300 is broken down into three parts. The first, Part A, applies to both municipal land use planning and to consideration of approvals for stationary sources. Part B, entitled “Stationary Sources”, essentially replaces NPC-205 and NPC-232. Part C deals with land use planning and replaces LU-131 and the October 1997 Publication Noise Assessment Criteria And Land Use Planning: Requirements, Procedures and Implementation. The noise limits set out in NPC-300, whether in Part B or Part C, are now consistent, eliminating any inconsistencies.
New Class 4 Area
The former guidelines established varying sound limits based upon the acoustical character of the area in which the proposed use or the noise generating facility was located. That regime provided for two urban acoustical environments (Class 1 and 2 Areas) and one rural acoustical environment (Class 3). Class 1 and 2 Areas were differentiated essentially by whether the evening and night background sound levels decreased or not.
The original draft of NPC-300 would have created two new acoustical environments (Class 4 and Class 5 Areas). NPC-300, as adopted, has eliminated the proposed Class 5 area definition. There will only be four acoustical environment areas.
The new Class 4 Area is defined to be an area or specific site that would otherwise be defined as Class 1 or 2 and which
- is an area intended for development with new sensitive land use(s) that are not yet built;
- is in proximity to existing, lawfully established stationary source(s); and
- has formal confirmation from the land use planning authority with the Class 4 area classification, which is determined during the land use planning process.
It is made clear that “areas with existing noise sensitive land use(s) cannot be classified as Class 4 areas”.
NPC-300 increases the sound level limits in Class 4 areas to a maximum of 60 dBA in the daytime and 55 dBA during the night. Compared to LU-131 and NPC-205, the 60/55 dBA standards are significantly less stringent that would have been the case where the background or ambient level of sound is low. However there is a change in the way background noise levels are used in noise assessments compared to LU-131. In locations where there is already a high level of background noise, NPC-300 may establish a sound level limit that is lower than would have been determined under LU-131.
What is not defined is NPC-300 is what precisely needs to be done by a “land use planning authority” to create or “formally confirm” a site or area as a Class 4 area. The new Class 4 Areas are only entitled to use the new standards if that Class 4 Area confirmation has occurred. What is clear is that the confirmation has to be “determined during the land use planning process”. We would anticipate that, as a minimum, the municipality should include in the zoning by-law a provision explicitly recognizing the site as a Class 4 Area and either incorporate the definition and the relevant provisions of NPC-300 by reference or, more clearly, replicate them in the by-law itself. Where there is an opportunity we would likely suggest that the confirmation of the Class 4 area be carried out through an Official Plan Amendment. Whether or not the municipality establishes an Official Plan policy setting out the process for confirmation of a Class 4 area is a matter that deserves some consideration by municipalities.
What is less clear is whether a council resolution constitutes “formal confirmation” in the context of a land use planning process that is not otherwise considered by municipal council. Even less clear is whether a person exercising a delegated authority can provide that “formal confirmation”. The use of the Class 4 standards where a minor variance or site plan approval is being sought is thus fraught with some questions. Of course, it is unlikely a change in use would result from those sorts of applications, but application of the guideline may be useful in some cases. We expect that because of the lack of absolute clarity on what “formal confirmation” consists of, that there may be attempts by those opposed to a particular development to challenge the adequacy of whatever measures are taken to “formally confirm” that development site as a Class 4 area. It may take a year or two for the parameters of that requirement to be finally settled by way of either an Ontario Municipal Board decision or a court decision.
Enclosed Noise Buffers
NPC-300 recognizes the use of enclosed noise buffers as a way of abating noise in the living areas in noise sensitive spaces. Noise sensitive spaces are defined as “the living and sleeping quarters of dwellings and sleeping quarters of noise sensitive commercial institutional land uses”.
The most prevalent use of the enclosed noise buffer will be a glazed, enclosed balcony that separates the living areas of a dwelling from the exterior. The use of enclosed noise buffers can only be applied in a high-rise, multi-unit building in a Class 4 area. NPC-300 sets out specific criteria for those noise buffers, but there is a level of interpretation necessary, given the flexibility built into those criteria. For example, we expect that there may be disputes over whether an enclosed noise buffer is amenable to conversion to an enclosed space that can then be used as a living area or bedroom.
Noise sensitive spaces
As discussed earlier, the definition of a noise sensitive space refers to two types of spaces: 1. Those within dwellings used for living and sleeping and 2. Those in noise sensitive commercial and institutional uses which are sleeping quarters. It is then followed by a list of examples.
There is in our view some ambiguity within the definition itself, since the effective portion of the definition is limited to only referring to spaces which are in a dwelling or which are sleeping quarters. Yet the examples given are of spaces which are neither in a dwelling nor sleeping quarters. For example, therapy or treatment rooms, class rooms and assembly spaces for worship are given as examples of a noise sensitive space despite the fact those are neither in a dwelling nor are sleeping quarters.
Places of worship
The author of this article had commented to the Ministry of the Environment that the inclusion of places of worship as a noise sensitive land use had become outdated given the changing nature of places of worship in Ontario and the areas they are located in, particularly in the larger Ontario cities. The last 20 years have seen many places of worship locate in light industrial areas because municipal zoning has increased the parking requirements to the point where the required number of parking spaces could not be easily met in commercial or residential areas. It was only in the lighter industrial or employment areas where land was more readily available and at lower prices that the amount of land required for the parking mandated by municipalities could be provided.
Compounding this physical and economic driver to light industrial areas was a change in the demographics of at least southern Ontario. The increase in the number of faiths present in an increasingly diverse society has resulted in the need for more individual places of worship than was the case when Ontario was primarily homogeneous. Where in the past a community only needed a handful of Judeo-Christian churches and temples, the growth in the population and its diversity means more religions and more denominations are needed. The commercial and residential areas of most municipalities have been built up and are largely unavailable. The profusion of places of worship in industrial areas provides a challenge to a new industrial operation establishing itself in those areas if it must comply with the standards applicable to noise sensitive uses. The situation is even more dire where existing industries need to obtain an ECA in the event of an expansion or process of change.
NPC-300 responds to this concern by providing that a place of worship located on commercially or industrially zoned land will not be considered noise sensitive. It does preserve the entitlement that places of worship located in residential areas have from the noise generated by industries in adjoining or nearby industrial areas. A traditional church or temple located in a residential neighbourhood retains its reasonable expectation of a low noise environment while those knowingly locating in industrial or commercial areas will not jeopardize the continued operation of nearby industries and enterprises.
Other changes and clarifications
NPC-300 sets out technical changes in the manner in which the background or ambient sound level is to be measured and modelled, how certain sources of sound are to be treated in noise assessments, clarification as to where the points of reception are to be taken, how infrequent sounds are to be treated; all refinements that are designed to address concerns raised by those involved in assessing noise impacts. Some of these details may have been available previously but were scattered across documents. NPC-300 clarifies and consolidates them into one more easily referenced guideline.
NPC-300 brings consistency to the three primary areas in which noise impact assessments are important: land use planning, environmental compliance approvals (including renewable energy approvals through the process mandated for renewable energy projects) and for enforcement of noise excesses, whether through complaints to the Ministry or through a municipal noise bylaw (which, for consistency, should be brought into compliance with NPC-300).