CONTENTS
- 1. Construction Claim | A Case Seeking Damages for Noise
- - The Lower Court's Determination
- 2. Construction Claim | The Supreme Court's Determination
- - Liability Is Not Excluded Merely by Meeting the Living-Noise Standards
- - The Point That the Criteria for Recognizing Livestock Damage Must Also Be Considered
- - The Construction Company's Foreseeability and the Timing of the Noise-Reduction Measures
- - The Causal Relationship Between the Actual Scale of Harm and the Construction Noise
- 3. Construction Claim | Summary of the Applicable Criteria
- - Practical Risks and Points for Review
- 4. Construction Claim | The Construction Attorney's Strategy
- - The Construction Attorney's Assistance
1. Construction Claim | A Case Seeking Damages for Noise
This matter, which falls under construction claims, is a case in which a claim for damages was filed on the ground that noise and vibration generated during the construction of a new building caused parrots being raised in an adjacent building to die and their breeding rate to decline.
The plaintiff was a business operator running a parrot retail store in Anyang, and the defendants constructed a new building with four basement levels and fifteen above-ground floors on a site adjacent to the store.
During the construction, the plaintiff alleged the following harm.
• Decline in egg-laying rate and productivity
• Decrease in sales
• Deterioration of the breeding environment
In particular, the plaintiff continuously raised the issue of construction noise throughout the construction period and filed several complaints with the Anyang City Hall.
The contractor, however, argued that it bore no liability, on the ground that it had complied with the living-noise control standards under the Enforcement Rule of the Noise and Vibration Control Act during the construction and had subsequently installed a soundproof wall.
The Lower Court's Determination
The lower court ruled in favor of the contractor.
The court placed significant weight on the facts that the construction site in this case was located in a commercial district and that the noise measured during the construction also fell within the commercial-district living-noise standard under the Enforcement Rule of the Noise and Vibration Control Act, namely 70 dB(A) or less during the daytime.
It also took into account that the contractor had installed a sound-absorbing soundproof wall in accordance with the guidance of the administrative agency.
Accordingly, the lower court determined that it was difficult to find that the noise generated during the construction exceeded the range tolerable under generally accepted social norms, and it did not recognize the contractor's liability for damages.
2. Construction Claim | The Supreme Court's Determination
The Supreme Court, however, reversed the lower court's determination and remanded the case for further review.
In this construction claim case, the Supreme Court held that illegality must not be judged solely by whether the noise standards were met, and that the extent of the harm actually incurred and the overall course of the construction must be examined together.
Liability Is Not Excluded Merely by Meeting the Living-Noise Standards
The Supreme Court explained that, in cases seeking damages for noise and vibration generated at a construction site, illegality must be judged according to the following criteria.
That is, the key issue is whether the harm exceeded the range that one should generally have to tolerate under generally accepted social norms.
Reaffirming its existing case-law principles, the Supreme Court held that the following factors must be considered comprehensively.
• The public nature of the harmful conduct
• The possibility of avoiding the harm
• Whether preventive measures were implemented
• Whether public-law regulatory standards were violated
• The current state of land use in the area
• The chronological order of the land use
In particular, the Supreme Court determined that the living-noise control standards constitute only a minimum standard for the protection of residents, and that the mere fact that the noise was below the standard does not, as a matter of course, negate civil liability.
The Point That the Criteria for Recognizing Livestock Damage Must Also Be Considered
A notable aspect of this judgment is that, beyond the general living-noise standards, the Supreme Court treated the Central Environmental Dispute Mediation Commission's "criteria for recognizing livestock damage" as an important factor in its determination.
Those criteria set forth the following figures.
• Delayed growth, reduced conception rate, decreased number of offspring, reduced productivity, and the like : average noise of 60 dB(A)
The Supreme Court determined that the noise generated at the construction site in this case may have reached or exceeded these criteria.
It also took into account the appraisal findings that, given the characteristics of birds, the impact noise and irregular noise generated during construction work can have a greater effect than ordinary environmental noise.
The Construction Company's Foreseeability and the Timing of the Noise-Reduction Measures
Key Factors for Review |
|---|
Time when complaints were received |
On-site response records |
Timing of the implementation of noise-reduction measures |
Management records by construction phase |
Whether the possibility of harm was reviewed in advance |
In this case, the Supreme Court treated the contractor's noise management and the course of its response to complaints as important factors in its determination, and held in particular that matters such as those above may be key subjects of review in a construction claim case.
The store in question could be identified as a parrot-rearing facility even from the outside, and the plaintiff continuously asserted noise-related harm and filed complaints throughout the construction period.
Nevertheless, the contractor installed the soundproof wall only about six to seven months after the construction began.
Considering that relatively loud noise from excavation, demolition, and equipment operation is often concentrated in the early stages of construction work, the Supreme Court determined that further review was needed as to whether the timing of these measures was sufficient from the standpoint of preventing harm.
The Causal Relationship Between the Actual Scale of Harm and the Construction Noise
“The plaintiff reported to the head of the Han River Basin Environmental Office that 304 parrots of an internationally endangered species had died as a result of this construction, and the official in charge also confirmed this; this amounts to nearly half of the number of parrots that the plaintiff claims to have been rearing.”
“The monthly sales of the store in question, as well as the annual purchases of feed, birdcages, and the like, and the annual purchases of parrots, all decreased overall after the construction of the building in question began.”
“Adding the research findings predicting that ornamental birds suffer death losses of 10 to 20 percent at noise of 60 to 70 dB(A) and 20 to 30 percent at noise of 70 to 80 dB(A), together with the appraisal content indicating that the irregular noise accompanied by impact sounds generated by construction work may be more harmful to birds such as parrots, it can be found that the noise generated by the new building construction in this case contributed substantially to the plaintiff's parrot-death losses.”
The Supreme Court determined that, taking these materials together, it was difficult to rule out the possibility that the noise generated during the construction had contributed in part to the occurrence of the harm.
Accordingly, this construction claim case confirms that not only the measured noise figures but also the actual business losses and operational changes may be subjects of review.
3. Construction Claim | Summary of the Applicable Criteria
This judgment on the construction claim case is significant in that it set out, in more concrete terms, the framework for determining liability for damages relating to construction noise in construction claim cases.
The Supreme Court held that illegality must not be judged solely on the basis of whether the living-noise standards were met, and that the actual scale of the harm generated during the construction and the course of the construction company's management and response must be reviewed comprehensively.
Practical Risks and Points for Review
Review Item | Key Content |
Noise management standards | Whether statutory noise standards are met and securing of measurement data |
Status of adjacent facilities | Review of the surrounding environment, including hospitals, schools, rearing facilities, and lodging facilities |
Course of complaint response | Management of the time complaints are received and of how they are handled |
Records by construction phase | Organization of work logs, high-noise work schedules, and on-site response materials |
Implementation of reduction measures | Confirmation of the timing of soundproofing installation and the course of measures taken |
Securing external materials | Preparation to respond to noise measurement results and appraisal materials |
Where facilities sensitive to noise or vibration are located near a construction site, the actual possibility of harm and the course of on-site response may become an issue in addition to whether the living-noise standards are met.
In addition, the work logs, complaint-handling records, and noise measurement data prepared during the construction may later be used as materials for determining the course of the construction company's management in a damages dispute, so they should be managed systematically from the on-site stage onward.
4. Construction Claim | The Construction Attorney's Strategy
In construction claim cases, issues such as noise, vibration, cracks, and delays in the construction period that arise during the construction often lead to damages disputes, provisional injunctions to halt construction, or environmental dispute mediation.
In particular, recent cases increasingly examine not only whether the living-noise standards are met but also the course of complaint response, on-site management materials, and whether the possibility of harm was reviewed in advance, so the process of organizing the legal-response framework is becoming important.
A construction attorney can comprehensively review the course of the construction and the on-site response materials to analyze the possibility of future disputes and to consider a direction of response suited to the circumstances of each construction phase.
The Construction Attorney's Assistance
Area of Response | Key Assistance Provided |
Response to construction-site complaints | Review of how noise and vibration complaints arose, organization of response materials, and inspection of the on-site management system |
Response to damages disputes | Review of the scope of alleged harm and of causation, analysis of the scope of liability, and organization of the response rationale |
Management of on-site materials | Review of evidentiary materials such as work logs, noise measurement data, and soundproofing installation records |
Response to administrative and litigation procedures | Review of the direction of response for each procedure, including environmental dispute mediation, provisional injunctions, and civil litigation |
A construction attorney comprehensively analyzes the course of on-site operations by construction phase and the complaint-response materials to review whether liability for damages is established and the possibility that the dispute may expand.
In addition, based on the work logs, noise measurement data, and consultation materials with administrative agencies secured during the construction, a construction attorney can organize the course of on-site response and consider a direction of response so that the construction company's management and the measures it has taken can be objectively confirmed.
If you need assistance with a construction claim, 🔗a construction attorney, you are welcome to review, through a consultation with a construction attorney, a direction of response suited to the on-site situation and the course of the construction.
