How long does the night last? Confirmation of the night flight ban is within reach

In addition, a quota of 150 flights in the so-called off-peak hours, which by definition are the hours between 10 p.m. and 11 p.m. and 5 a.m. and 6 a.m., was negotiated. However, the 4th Senate, chaired by Prof. Dr. Rüdiger Rubel, will not only have to make a final ruling on the night-time peace of residents in the following weeks: the entire planning approval procedure relating to the approval of Frankfurt Airport's north-west runway, which went into operation in October, will also be heard.

In its ruling of August 21, 2009, the Hessian Administrative Court in Kassel objected to parts of the night flight regulations in the planning approval decision. This permits an average of 150 scheduled flight movements at night, 17 of which may take place between 11.00 pm and 5.00 am. In particular, the approval of these 17 flights during the mediation night was not compatible with the legally required protection of the population from night-time aircraft noise, the judges ruled. On the contrary, in the view of the Hessian Administrative Court, this must be given special consideration, which is why the planning approval authority's justification that Frankfurt Airport would lose its competitiveness as a result was not upheld. In this context, the judges in Kassel also had to decide on the regulation to allow 150 aircraft movements on an annual average for the so-called off-peak hours. This regulation allows flights to be shifted from the winter quota to the peak travel period, resulting in a concentration on individual nights.
In their decision, the judges in Kassel based their decision on Section 29 b (1) sentence 2 of the German Air Traffic Act, which obliges the approval authority in the planning approval procedure to show special consideration for the night-time peace of the population. In contrast, the planning approval authority argued with the location-specific need for night flights for Frankfurt Airport as an international hub for freight and passengers. The operating concept of the airport operator FRAPORT AG for the northwest runway did not provide for scheduled flights during the mediation night. The complaints by Lufthansa AG and Lufthansa Cargo AG regarding the extension of the night flight regulations and, in particular, more than 17 flights were dismissed in Kassel for this reason.

The Hessian Minister for Economics, Transport and Regional Development, Dieter Posch, whose authority is responsible for the planning approval decision, justified the appeal by the state of Hesse with the desire for legal certainty. Naturally, efforts are being made to strike a balance between the different interests, namely securing the location, the interests of the aviation industry and the protection of the population. But: "Frankfurt is not just any airport", and it is also important to precisely define the scope for decision-making for the planning approval of future infrastructure projects with this procedure.

The presiding judge also recognized a certain area of "vagueness" within the protection of night-time quiet enshrined in the Air Traffic Act. "But", said Rubel, "night must not be turned into day". He also made it clear that he assessed the different settlement structures in the Rhine-Main region differently compared to the circumstances at Leipzig Airport. There, the Senate had recognized a location-specific need and issued an unrestricted night flight permit for express freight. The judges in Leipzig do not see the need for 17 scheduled night flights at Frankfurt Airport, as claimed by the planning approval authority.

However, if these night flights are discontinued, there is a risk of further congestion in the off-peak hours, i.e. those 60 minutes from 10 p.m. and 5 a.m. respectively. There is already a quota of 150 flights for this time, and it is clear to the plaintiffs that there must be a ban here, or at least regulation.
"Night-time protection is vital," says Ursula Philipp-Gerlach, the legal representative of the Offenbach hospital, adding that there is a medical recommendation for an absolute ban on night flights between 10 p.m. and 6 a.m., particularly for city airports. "The German Heart Foundation sees reasons why aircraft noise makes people ill. Especially when people don't get a restful night's sleep," adds lawyer Mathias Möller-Meinecke, who represents private plaintiffs from Kelsterbach.
And Dr. Reiner Geulen, legal representative for the city of Offenbach, asked whether someone who is already severely affected by aircraft noise during the day should also have to put up with night flights. "The aviation industry is a growth industry," said Geulen, "which is wonderful for the economy." However, the simultaneous linear increase in noise and emissions is increasingly coming into conflict with the right to physical integrity. The specialist lawyer therefore demanded: "The closer you get to the night-time core time, the more the need must be proven."
The judges of the 4th Senate also see a need for improvement here, above all, according to Rubel, "the landing approach corridor is always the same and therefore one population group is always particularly affected." They also see the danger of congestion at off-peak times, when as many aircraft as possible reach the airport before nightfall or in the morning. Rubel believes that "effective and specific restrictions need to be examined and precautions taken for night-time rest, as the daytime load is already high."

The patients at Offenbach Hospital also need rest and quiet to a particularly high degree. The hospital is located in the approach path of the new northwest runway in the noise protection zone, is overflown at a maximum noise level of up to 70 dbA for more than 70 percent of the year and is now subject to a construction ban. The plaintiffs believe that this jeopardizes the provision of care to the population in line with their needs, as the hospital is unable to react to medical innovations that require construction measures. This also jeopardizes the future viability of the business. "Alternative locations outside the noise protection zone are out of the question," says Ursula Philipp-Gerlach, "after all, the hospital is the location for emergency care in the city." For her, the construction ban associated with the noise protection zone is proof that the planning approval is flawed and therefore that the railroad is spatially incompatible.
"The construction ban also affects the planning sovereignty of the city of Offenbach," and "the area in the city affected by aircraft noise is twice as large as assumed by the Administrative Court," says Dr. Reiner Geulen. The noise pollution caused by the expansion had also been significantly underestimated. If this is not called into question by the Federal Administrative Court, the aim is to achieve a better noise protection concept for the residents of Offenbach with a supplementary planning approval.

The Federal Administrative Court plans to announce its decision on April 4.

March 15, 2012