European Court of Human Rights disallows property owners’ challenge to Berlin Brandenburg Airport construction News
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European Court of Human Rights disallows property owners’ challenge to Berlin Brandenburg Airport construction

On Thursday, the European Court of Human Rights declared an application concerning the planning decision to construct Berlin Brandenburg Airport inadmissible. Thus, the petitioners who owned property near the airport have not successfully challenged the airport expansion.

According to the judgment of John Buttner and Jutta Krebs v. Germany, a decision was made to consolidate Berlin’s three airports into one single airport, now operating as Berlin Brandenburg Airport, in 1996. In 1998, the planning authority, including the Ministry of Urban Development, Habitation, and Transport of the Land of Brandenburg, established a working group to draft an outline of the arrival and departure flight paths. This outline was essential for assessing the airport’s expected impact on the surrounding area as part of the planning approval process. The proposed flight paths were designed to run parallel several kilometers after take-off. In 2004, the planning authority approved the planning application and identified the areas where residents could request protective measures or compensation based on the parallel flight paths. However, a working group member raised concerns, pointing out that using the runways simultaneously would require the flight paths to diverge by at least 15 degrees. The final plan of the flight paths, which diverged by more than 15 degrees, was not made public until 2010.

In 2010, the applicants, whose homes are situated respectively 7.5 km and 9 km east of the center of the airport’s southern runway, asked the planning authority to revoke the planning approval or to prohibit the simultaneous use of both runways. They argued that the planning decision was unlawful. After the planning authority rejected their request, the applicants brought the case to the Federal Administrative Court in 2011. In 2012, the court dismissed the case as ill-founded, stating that there were no legal errors in the planning decision. The court examined the noise impact implications of the diverging flight paths compared to the parallel flight paths on which the planning documents had been based and found that the population density in the areas affected was broadly similar. Thus, the court ruled out the idea that the procedural defects of the planning approval procedure regarding the public consultation process and the assessment of the airport’s environmental impact had affected its outcome.

The applicants subsequently lodged a constitutional complaint with the Federal Constitutional Court, alleging that the Federal Administrative Court had wrongfully found the planning decision lawful. In 2017, the Federal Constitutional Court declined to accept the complaint, stating that the planning authority had adequately balanced the competing interests and that the outcome of the planning decision would not have been more favorable to the applicants, even without procedural defects.

In 2018, the applicants complained to the European Court of Human Rights. Article 6 of the European Convention on Human Rights stipulates that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law in determining his civil rights and obligations. Article 8 stipulates that everyone has the right to respect his private and family life, home, and correspondence. Relying on these provisions, the applicants argued that their right of access to a court had been violated and that they needed access to all the relevant information necessary to make a practical challenge to the planning decision. The court noted that the German courts had rejected the complaints after carefully looking at the merits and providing detailed reasons. The court also agreed with the findings, including that the planning authorities had balanced the interests at stake correctly despite procedural defects and that the outcome would not have been more favorable to the applicants. Therefore, the court unanimously declared the application inadmissible.

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