¹ Environmental Quality in Israel, 1981, Yearly Report No. 9, Yeshaya, Ben, (ed.), (E.P.S., Jerusalem, 1982, in Hebrew) 166Google Scholar.

² Such a restrictive policy, although never endorsed by the Israeli courts, has been accepted in other systems. See McCuiston v. Addressograph-Multigraph Corp. 29 S.E. 2d 490 N.C. Ct. App. (1982) where as recently as 1982 a North Carolina Court of Appeals found that under N.C. Workers Compensation Statute, “a claimant must prove he was exposed to 90 decibels of noise before he can recover compensation.”

³ Israel Electric Co. Ltd. v. Farsht et al., Cr. A. 151/84 (Dec. 13, 1984, unpublished). On file with author and at office of legal advisor, E.P.S., Jerusalem. For the facts of the case see text at infra n. 35.

⁴ The Criminal Code Ordinance, 1936, sec. 102(1), 189Google Scholar, superceded by the Penal Law, 1977 (L.S.I. Special Volume, 1977).

⁵ The Civil Wrongs Ordinance (New Version), (2 L.S.I. [N.V.] 5, particularly sec. 44 at 17).

⁶ Abatement of Nuisances Law, 1961, sec. 2 (15 L.S.I. 52).

⁷ To date 11 sets of regulations have been promulgated by the Ministers of Interior and Health. The original version of the Law authorized both the Minister of the Interior and the Minister of Health to issue regulations. The government, however, later cancelled the latter's authority in a decision that, in accordance with sec. 17(A) of the Basic Law: the Government, was approved by the Knesset. See Yalkut HaPirsumim (II) p. 1736Google Scholar (May 4th, 1982).

⁸ The courts have been strangely silent in interpreting this paragraph, although as we will argue, it can be a very important provision.

⁹ See Oppenheimer v. Minister of Interior, (1965) 20 P.D. 309 and Peranio v. Minister of Health, (1972) 26(i) P.D. 809 vis-à-vis promulgation of ambient air standards. For further discussion of the law and regulations also see Kretzmer, “Judicial Conservatism v. Economic Liberalism: Anatomy of a Nuisance Case” (1978) 13 Is. L. R. 298 at 313–315.

¹⁰ Amongst others: Kanovitch v. The Civil Air Supervisor, (1973) 26(i) P.D. 309; Ata Textile Co. v. Schwartz (1976) 30(iii) P.D. 785 and The Soldier's Welfare Committee v. Weiner, (1966) 51 P.M. 257.

¹¹ Nuisance Abatement Regulations (Unreasonable Noise), 1977, K.T., no. 365, p. 716. Despite certain scholars contentions that the Abatement of Nuisances Law is the “quintessential non-enforced statute”, the record does not bear this out. With the issuing of the Regulations, local units of the Environmental Protection Service (E.P.S.) began responding to individual complaints of industrial and commercial violators. Noise measurements are taken and in the event that they exceed the decibel limit, reports are sent to the sources, informing them of their violations. The general results have been surprisingly successful proving that a law's efficacy need not be measured by the number of court actions based on its provisions. In 1981, 1255 such complaints were answered in the Tel Aviv area alone. See Environmental Quality in Israel, supra n. 1 at 184.

¹² Nuisance Abatement Regulations, ibid., at Second Appendix.

¹³ Background Information from the Study Day for Local Inspectors, Abatement of Nuisances Law, 1961 and Regulations for Unreasonable Noise: (Ministry of Interior, 1977, in Hebrew).

¹⁴ K.T. no. 3922, p. 1394. Significantly these regulations only refer to imported vehicles and do not apply to vehicles assembled in Israel. Also there is nothing in the regulations to prevent the disassembling of anti-noise apparatus such as mufflers.

¹⁵ K.T. no. 3663, p. 908.

¹⁶ (1969) 33(ii) P.D. 315.

¹⁷ For a discussion regarding the Abatement of Nuisances La's application in the framework of Israeli Tort Law, see Kretzmer, , Nuisances in The Law of Civil Wrongs: The Particular Torts, Tedeschi, G., (ed.), (Faculty of Law, Hebrew University, Jerusalem, 1980, in Hebrew)Google Scholar.

¹⁸ Israel Electric Co. Ltd. v. Avishar, supra n. 16 at 319.

¹⁹ Id.

²⁰ (1981) 35(iv) P.D. 741.

²¹ K.T. no. 2501, p. 699: “No one shall drive a vehicle or park it in a road if the vehicle emits gasses, smoke, oil or petroleum material in a manner that exceed the regular emissions from a vehicle of this type or in a manner likely to cause a disturbance to a passerby or to endanger safety.”

²² K.T. no. 1506, p. 92.

²³ Miyuchas v. State of Israel, supra n. 20 at 743.

²⁴ (1983) 100(a) P.M. 150.

²⁵ 34 L.S.I. 8.

²⁶ See sec. 2, Noise Abatement Regulations (Pollution from Vehicles) supra, and Public Health Regulations (Pollution Emissions from Motor Vehicles), 1980 K.T. no. 4106, p. 1244. The former stipulates use of the “Hatridge” test while the latter introduces the “Ringelmann” test. The confusion is caused by the Public Health Ordinance originally defining unreasonable air pollution by the Abatement of Nuisance Regulations, while much later on the Ministry of Health issued other regulations by the authority granted by the same Ordinance. This authority overlaps with that of the Minister of the Interior under the Kanovitch Law.

²⁷ Dan Union of Public Transportation v. State of Israel, supra n. 24 at 156.

²⁸ (1981) 35(ii) P.D. 122.

²⁹ Tel-Aviv Bye-Law (Preservation of Streets), 1979, K.T. no. 4019, p. 1772.

³⁰ As more cities enact bye-laws which set decibel levels for expected noise, the role of measurements will play an increasing role in administrative law and licensing cases.

³¹ Odem v. Mayor of Tel-Aviv, supra n. 28 at 127. This decision involved licensing and theoretically should in no way affect local residents' claims in a nuisance action.

³² (1980) 95(b) P.M. 441. This case has been appealed in the Supreme Court, which overturned the decision of the District Court regarding the State's liability. The lower court's holdings on noise measurement, however, were unquestioned. (The Supreme Court's decision is as yet unpublished.)

³³ Oppenheimer v. Minister of Interior, supra n. 9 at 332.

³⁴ State of Israel v. Bnei Atarot, supra n. 32 at 449. Significantly the court did not determine whether compliance with the regulations automatically cleared a defendant or whether it only shifted the burden of proof. The Farsht decision, however, chooses the latter route.

³⁵ Farsht v. Israel Electric Co. Ltd., Cr. App. (T.A.) 1622/82, unpublished. (D. Tel Aviv, Nov. 11, 1983). On file with author and at office of legal advisor, E.P.S., Jerusalem.

³⁶ Supra n. 3 at 3, and see Oppenheimer, supra n. 9 at 333.

³⁷ Id. at 4. See example of Abatement of Nuisances Law applied to aircraft in Bnei Atarot, supra n. 32. The District Court in its decision (p. 11) cites the promulgation of other noise regulations in 1979 as further proof that the regulations were not intended to be exhaustive.

³⁸ id. at 7 and per Bejski at 14.

³⁹ id. at 9.

⁴⁰ Supra n. 35 at 11.

⁴¹ Supra n. 3 at 9.

⁴² Supra n. 35 at 10.

⁴³ Id. at 26. In Ata v. Schwartz, supra n. 10, for example, in the absence of regulations the court based its decision on the advice of acoustic experts.

⁴⁴ Supra n. 3 at 5.

⁴⁵ Supra n. 35 at 37.

⁴⁶ Supra n. 3 at 7.

⁴⁷ Noise-Environmental Health Criteria 12 (World Health Organization, Geneva, 1980) at 11Google Scholar.

⁴⁸ Hassel, and Zaveri, , Acoustic Noise Measurement (Bruel and Kjaer, Denmark, 4th ed, 1979) at 30Google Scholar.

⁴⁹ Callahan, , “Noise and its Measurement” (1980) Current Mun. Problems 70Google Scholar.

⁵⁰ Gifford, , “Noise Control and Compensation for Noise Pollution,” (1980) 54 Australian L.J. 408 at 411Google Scholar.

⁵¹ Hassel and Zaveri, supra n. 48 at 34.

⁵² See Noise and Vibration Control, Beranek, C., (ed.), (McGraw-Hill, New York, 1971) 24–26Google Scholar.

⁵³ Callahan, supra n. 49 at 76.

⁵⁴ Hassel and Zaveri, supra n. 48 at 42, 46.

⁵⁵ Berland, , The Fight for Quiet, (Prentice Hall, Engelwood Cliffs, N.J., 1970) at 46Google Scholar.

⁵⁶ Hassel and Zaveri, supra n. 48 at 21–29.

⁵⁷ “Chocolate Manufacturers Challenge Use of Dosimeter to Measure Noise,” (June 1984) 10 Noise Regulations Reporter 4 (published by the Bureau of National Affairs (BNA) in Washington)Google Scholar as contended in brief filed with the U.S. Occupational Safety and Health Review Commission.

⁵⁸ Farley and hewers Ltd. v. Attorney General (1963) W.N. N.S.W. 80 at 1709.

⁵⁹ Howard Smith Industries Pty. Ltd. v. Leichhadt Municipal Council (1968) 16 L.G.R.A. 348 at 352 as reported by Gifford, supra n. 50.

⁶⁰ (1961) W.N. N.S.W. 78 at 995.

⁶¹ Report of Second Federal Interagency Noise Effects Research Panel (Office of Noise Abatement and Control, Washington) Feb. 1978 at II-3 and II–4Google Scholar.

⁶² Black, , “The Highway Cases: Noise as a Taking or Damaging of Property in California,” (1980) 20 Santa Clara L.R. 425Google Scholar.

⁶³ Gifford, supra n. 50 at 409.

⁶⁴ Daugherty v. Ashton Field and Grain Co. Inc. 303 N.W. 2nd 64 Neb. (1981).

⁶⁵ Id.

⁶⁶ The court's position is not unlike that held by an early Israeli Supreme Court decision, Hotel Eden v. Gerzon (1952) 8(ii) P.D. 1131, where the defendant's inability to sleep, read or carry out any serious business in his apartment due to the noise from the neighbouring hotel's cafe was sufficient to prove the existence of a nuisance according to the Civil Wrongs Ordinance. The appellant's claim that th defendant was overly sensitive was not accepted as a valid defence in light of the objective interference in the defendant's use of his property.

⁶⁷ “Equity” (1982) 15 Creighton L.R. 272 at 274Google Scholar.

⁶⁸ Farley and hewers v. Atty. General, supra n. 58 at 1709.

⁶⁹ Swaygen, John, “Environmental Law, 1975–1980” (1980) 12 Ottawa L.R. 464 at 469Google Scholar.

⁷⁰ The court's position can be criticized on two more levels: 1) Lack of consideration for the tone, frequency or type of noise and 2) Inadequate regard for those residents already suffering from a level of noise beyond that from which the law promises to protect them. The question of why these citizens should have to suffer an additional nuisance in a case where the law can help them, is not addressed. If a “burden of proof” approach had been applied, the petitioner would have at least had to prove that the prevalence of traffic noise made the disturbance from customers' conversations negligable for the area's residents beyond the sole criterion of decibel level. Assuming that the complaints were not completely unfounded this would have been difficult.

⁷¹ Black, supra n. 62 at 444.

⁷² Id. at 446.

⁷³ Working Draft of Regulations for Unreasonable Noise (suggested amendments) (Environmental Protection Service, May 1984).

⁷⁴ Illinois Control Board Rules and Regulations, Chapter 8, Noise Regulations, (1973) sees. 202-204. The Regulations are an illustration of just how much frequency should effect measurement-decibel levels range from 72 dB. to 32 dB. corresponding to frequency changes of 31.5 to 8000 Hz.

⁷⁵ Interview with Ossnat Arnon, Acoustics Director E.P.S., June 9, 1984.

⁷⁶ Telephone Interview with Nili Baram, legal advisor to the city of Rehovot on June 17, 1984. Lack of overnight parking lot space made the plan unrealistic.

⁷⁷ See K.T., no. 1896, p. 2264. These regulations were not altogether ineffective; a provision as seemingly banal as para. 6, which forbids the moving of trashcans before 6:00 a.m. In changing the trash collection schedule a contribution is made to early morning peace that is not inconsequential.

⁷⁸ For a comprehensive examination of the potential capabilities of local government in noise regulations, see “Local Actions and Pilot ‘Quiet Towns’”, in Conference on Noise Abatement Policies, May 7–9, 1980. (Chateau De La Matte, Paris, 1980)Google Scholar, Particularly of interest is the success in regulating moving sources of noise in San Diego, Cal. See San Diego California, Case History of a Municipal Noise Control Program, (U.S. EPA-Washington, March 1979)Google Scholar. Also see “Six Cities Considering Adopting Noise Control Ordinance”, Noise Regulation Reporter, Nov. 29 1982 at 179Google Scholar on local efforts in Colorado.

⁷⁹ Tel-Aviv Bye-Law (Prevention of Noise), 1982 K.T., no. 153, p. 107; Haifa Bye Law (Prevention of Noise), 1984 K.T., no. 222, p. 453. Ramat Gan and Ashdod have also passed similar bye-laws. These laws are much more extensive than those they replaced, including specific standards for alarm systems according to neighbourhoods, and provisions allowing city inspectors to “enter a place in which he has reasonable suspicion to assume a violation of the law is transpiring”. Measurements are to be taken according to the 1977 Regulations.

⁸⁰ Report of Second Federal Interagency Noise Effects Panel, supra n. 61 at II-7.

⁸¹ Kretzmer, “Judicial Conservatism v. Economic Liberalism,” supra n. 9 at 315. In the United States the right to a quiet environment is beginning to receive the same legitimacy as the right to clean air or potable water. For example, demands like those which would require juke boxes to offer periods of silence for the cost of a record, once seemingly absurd, are becoming increasingly credible.

⁸² It is worthy of note that no orders in accordance with sec. 8 of the Abatement of Nuisances Law have been issued heretofore in the area of noise regulation, although the Ministers have utilized the provisions in the area of air pollution. There is no reason why sec. 8 could not be an effective tool in combating noise pollution particularly with the increased proliferation of Environmental Impact Statements in the planning stages of building in Israel.

⁸³ Gifford, supra n. 50 at 416.