Facts
The private respondent [E.] is the owner of plot Gbbl. No. 805 in the municipality of Saanen. The plot lies in the residential and commercial zone WG3 and is assigned to noise sensitivity level III. He intended to convert the existing residential/commercial building, namely the conversion of the former joinery on the ground floor into a post delivery office for the Saanenland region (home delivery previously from three offices, now from a single one).
The Einwohnergemeinde Saanen granted the building permit on 22 September 2016 and rejected several objections. Upon appeal by [A. AG] , [B.] , [C.] and [D.] , the Bau-, Verkehrs- und Energiedirektion (ACI) annulled the decision on 10 February 2017 and remitted the matter for more detailed noise assessment. The municipality approved the project again on 20 March 2018. After a project amendment (operating concept of 27 September 2018, noise forecast of 5 October 2018, revised plans of 14 December 2018), the ACI approved the project on 26 March 2019 with an additional noise protection condition and dismissed the appeal insofar as it was admissible. The Verwaltungsgericht of the Canton of Bern dismissed the appeal by judgment of 30 March 2020.
The appellants lodged a public law appeal with the Federal Supreme Court, requesting annulment of the judgment and refusal of the building permit, alternatively remittal. The BVD, the Verwaltungsgericht and the respondent requested dismissal. The Bundesamt für Umwelt (BAFU) considered the judgment compliant with federal environmental law in its submission of 25 August 2020. The President of the I. Public Law Division rejected the request for suspensive effect.
The subject matter of the dispute included in particular: the assessment standard for operational noise (industrial and commercial noise under Annex 6 NAO, or individual assessment due to awakening reactions), the noise determination and noise forecast (shunting noises, gradient of the forecourt, goods handling, immission points on the [U.] strasse), as well as the access in terms of traffic (road connection, quality of access, number of trips, turning possibility for trucks).
Considerations
Admissibility: The appeal against the final cantonal decision on the permissibility of a building project is admissible under Art. 82 lit. a, Art. 86 para. 1 lit. d and Art. 90 FSCA. The neighbours (appellants 1, 2 and 4) have standing under Art. 89 para. 1 FSCA; the standing of appellant 3 (approx. 85 m away) may be left open. Review is limited to federal law (Art. 95 lit. a FSCA); cantonal law is reviewed only for arbitrariness; complaints regarding the facts must be substantiated (Art. 105 para. 1, Art. 97 para. 1, Art. 106 para. 2 FSCA).
Noise law assessment standard: The conversion from a joinery into a post delivery office constitutes, under noise law, a complete change of use and thus a new stationary installation (Art. 7 para. 7 EPA, Art. 2 para. 2 NAO, Art. 25 EPA, Art. 47 NAO); the remaining residential use is of minor significance. Operational noise is to be qualified as commercial noise within the meaning of Annex 6 NAO and is in principle to be assessed according to these planning values. The case law on restaurant noise (BGE 137 II 30) is of no relevance, nor are the temporal restrictions of the municipal local police regulations.
Awakening reactions and noise peaks: The Federal Supreme Court acknowledges that the equivalent sound levels of the NAO for night and the marginal daytime hours could require supplementation, but refers to the ongoing work of the BAFU (SiRENE study, noise action plan, measure 7.02) and expects its prompt continuation. Unlike in the mobile crusher case (BGE 138 II 331), in which a particularly noisy individual source stood out, such a source is absent here; the noise phases are assessed with level corrections K1-K3. The protection objectives of the EPA do not preclude an assessment under Annex 6 NAO.
Noise determination: The authority may rely on the noise forecast of the applicant reviewed by the beco (Art. 36 para. 1 NAO). The calculation of vehicle movements with StL-86+ is permissible, as the BAFU has confirmed it as conservative. The shunting noises may be based on a reference measurement at another location; the gradient of the forecourt of approximately 6.6% was taken into account and the planning values are also met with the gradient correction value; the assessed level is 4 dB(A) below the night planning value. The question of whether the terrain plan of 12 May 2020 constitutes an impermissible novum remains open. The goods handling has been correctly taken into account; the obligation to close the other garage doors is permissible as part of the binding noise forecast. The blanket complaint regarding dwellings on the building plot does not satisfy the requirements of reasoning. For the building at [U.] strasse, no noise determination is required: the immission limit values are met under Art. 9 NAO, and the precautionary measures under Art. 11 para. 2 EPA have not been substantiated as questionable.
Reservation of subsequent conditions and…