Snowmaking plant causes continuous noise: neighbour claim under Section 364 ABGB

Section 364(2) ABGB covers effects from a neighbouring property, expressly including noise and vibration. The owner may prohibit such effects where they exceed the level usual in the local conditions and substantially impair the ordinary use of the owner's property.

The two questions must be kept separate. First, the local standard at the specific location must be identified. Second, the intensity of the interference with the actual use of the property must be assessed. A ski area next door may shape the comparison, but it does not automatically remove the need to examine substantial impairment.

A direct discharge is expressly impermissible in all circumstances without a special legal title. This rule concerns the way the effect is transmitted and must not be mixed with the assessment of noise emitted by plant operation.

The local standard is assessed by reference to the local conditions. For a snowmaking plant, location, distance, terrain, existing traffic and operating noise and the seasonal use of the area may matter. The relevant comparison is the concrete surroundings, not an abstract comparison with another ski area.

The second requirement concerns the use of the affected property. Living, sleeping, working and staying there may lead to different effects. Repeated operation during quiet periods may be assessed differently from a short daytime operation. Subjective annoyance alone does not prove substantial impairment, just as a single snapshot does not describe a recurring burden.

Each relevant operation should be recorded with date, start, end, weather and the perceived effect. A noise log becomes more useful when it describes sleep interruptions, open or closed windows, rooms used and other sounds perceived at the same time.

Technical measurements should be linked to the measurement location, time, method and operating conditions. Operating logs, maintenance data, plant plans, witness accounts and photographs of the surroundings may also matter. A later measurement does not automatically show how the plant operated on the day in question.

An official permit and the civil-law assessment under Section 364(2) ABGB should also be documented separately. A permit alone does not finally answer the private-law question of the concrete noise interference.

Where an excess over the local standard and substantial impairment are supported, an injunction claim can be examined. The requested relief should describe the concrete operating method. A request to prohibit all snowmaking regardless of time, duration and noise may go beyond the established burden.

The review may instead focus on a particular operating phase, a technical adjustment or another limitation of the interference. The legally and practically suitable form depends on the evidence and the neighbouring situation. Early preservation of operating and measurement data prevents the decisive circumstances from later resting only on recollection.