Federal Administrative Court decides on aircraft noise case

Background
Decision
Comment

Background

Numerous owners of residential properties affected by noise from aircraft operations have brought claims against Zurich Airport's operator, Flughafen Zurich AG.

Pursuant to the Swiss Federal Law on Expropriation, Flughafen Zurich may be liable to pay compensation if:

• the aircraft noise affecting the properties in question is excessive;
• it was impossible to anticipate the aircraft noise when the properties were bought; and
• the excessive aircraft noise led to a substantial decrease in the value of the properties.

Compensation may also be sought if aircraft directly and regularly pass over the properties at low altitude.

In a March 13 2014 test case, the Federal Administrative Court issued guidance on claims due to excessive aircraft noise and direct flyovers.(1)

Decision

The case concerns the claims of four owners of residential properties in Dubendorf and Gockhausen, located approximately 8 kilometres south of the threshold of Zurich's Runway 34.

Flughafen Zurich refused to compensate the owners and formal assessment proceedings under the Law on Expropriation followed. Federal Assessment Commission District 10, which is competent to decide on compensation claims against Flughafen Zurich, chose the four property owners' claims as a test case for direct flyover compensation.

On June 25 2012 the commission dismissed the claims. The property owners appealed the decision to the Federal Administrative Court.

The court stated that to claim compensation for direct flyovers, aircraft must fly over the properties each day. The flights need not continue throughout the day if the aircraft fly over residential properties during early morning hours. The court had no doubt that in this case aircraft regularly approached from the south in early morning hours, thereby passing over the residential properties in Dubendorf and Gockhausen.

The court then considered whether these flights were at a sufficiently low altitude to qualify for direct flyover compensation. The court found that the approaching aircraft normally followed the instrument landing system's (ILS) glide path, which ran 350 metres above the properties in question. The fact that not all aircraft precisely followed the instrument landing system's glide path was irrelevant. The court noted that in another matter, the Swiss Supreme Court had ruled that landing approaches at an altitude of 400 metres are not sufficiently low to constitute compensable direct flyovers.

The court also refered to the rules on the operation of aircraft at minimum altitudes. The Swiss Air Navigation Ordinance provides that, except when necessary for take-off or landing, no one may operate an aircraft under instrument flight rules below an altitude of 300 metres above the highest obstacle within a certain horizontal radius of the aircraft. While the court was mindful that this provision did not apply directly to the matter at hand, it nevertheless considered that the provision was introduced with the purpose of avoiding undue harassment to individuals on the ground. Provided that aircraft follow the instrument landing system's glide path, they should not overfly the properties in question below the minimum altitude.

Further, the court placed considerable weight on the issue of whether the properties were exposed not only to aircraft noise, but also to additional disturbing effects (eg, wake turbulence, vibrations or fuel fumes). The judges found no additional disturbing effects during onsite inspections at the properties.

The court rejected the claim that the landing approaches were made at a sufficiently low altitude to constitute compensable direct flyovers.

The court therefore dismissed the appeal regarding the direct flyover claims and turned to the question of whether compensation was owed due to excessive aircraft noise. The court based that part of the judgment on the assumption that only owners who had bought their property before January 1 1961 were unable to predict that their properties would be exposed to excessive aircraft noise. The cut-off date is based on the Swiss Supreme Court's case law in relation to approaches for Runway 28 from the east. The court found that the same cut-off date must apply to approaches for Runway 34 from the south.

The court rejected the argument that the approaches from the south were not predictable because they were introduced only as a result of Germany adopting unilateral measures in 2003, thereby making it impossible to approach to Runways 14 and 16 from the north over German territory during specified times. The court considered that property owners to the south of Zurich Airport should have been aware that the approaches were subject to arrangements between Switzerland and Germany. Since those arrangements could be amended or terminated, the property owners should have considered the possibility of landing approaches from the south.

The court dismissed the appeal of one owner who had bought his property after January 1 1961, but considered further the cases of the other owners who had acquired their properties before the cut-off date.

The court then considered whether the aircraft noise was excessive, but did not reach a decision in this regard. It found that the emission thresholds currently set out in Annex 5 of the Noise Abatement Ordinance do not adequately take account of the fact that the landing approaches from the south were made during the early hours of the morning and therefore at a particularly sensitive time. The court refrained from defining any specific threshold criteria. It granted the appeal in part and remanded the case to the commission, instructing it to investigate further whether the aircraft noise affecting the properties was indeed excessive, and if so whether the noise had led to a substantial decrease in the properties' value.

Comment

The judgment is not yet final and effective. It remains to be seen whether appeal proceedings before the Supreme Court will follow.

If the judgment remains in place, any direct flyover claim from owners of properties located in Dubendorf, Gockhausen and further south will no longer have a reasonable chance of success. Only direct flyover claims from owners of properties located closer to the threshold of Runway 34 (Wallisellen, Zurich-Schwamendingen and Opfikon) will be realistic; but even those owners will likely have to show that their properties are exposed not only to aircraft noise but also to additional disturbing effects (eg, wake turbulence, vibrations or fuel fumes).

In relation to compensation due to excessive aircraft noises, the court is willing to accept claims even if the emission thresholds of the Noise Abatement Ordinance are not exceeded, provided that the properties are affected by aircraft noise during particularly sensitive times. It remains unclear what threshold criteria apply in these cases.

For further information on this topic please contact Andreas Fankhauser at Baumgartner Mächler by telephone (+41 44 215 4477), fax (+41 44 215 4479) or email (afa@bmlaw.ch). The Baumgartner Mächler website can be accessed at www.bmlaw.ch.

Endnotes

(1) Federal Administrative Court, March 13 2014, A-4836|2012.