Judgment of 28 April 2016 -
BVerwG 4 A 2.15ECLI:DE:BVerwG:2016:280416U4A2.15.0
Please note that the official language of proceedings brought before the Federal Administrative Court of Germany, including its decisions, is German. This translation is based on an abbreviated version of the original decision. It is provided for the reader’s convenience and information only. Please note that only the German version is authoritative. Page numbers in citations have been retained from the original and may not match the pagination in the English version of the cited text.
When citing this decision it is recommended to indicate the court, the date of the decision, the case number and the paragraph: BVerwG, Judgment of 28 April 2016 - BVerwG 4 A 2.15– para. 16.
1. Section 49 of the Administrative Procedure Act (VwVfG, Verwaltungsverfahrensgesetz) also applies to planning approval decisions under aviation law (luftverkehrsrechtliche Planfeststellungsbeschlüsse). Third parties may demand that such an act be revoked, or that a discretionary decision be taken in its regard, only if the obligations as to protection stipulated by section 75 (2) second sentence of the Administrative Procedure Act do not suffice to remedy the situation.
2. A modified assessment of the given facts and circumstances may constitute a change in the factual situation in the sense of section 49 (2) first sentence no. 3 of the Administrative Procedure Act. Individual opinions that thus far have not found general acceptance in the scientific community are not a sufficient basis for doing so.
Sources of law
Administrative Procedure Act VwVfG, Verwaltungsverfahrensgesetz section 48 (1), section 49 (2) sentence 1 no. 3 and 5, section 51, section 72 (1), section 75 (2) sentence 2 Act on Accelerating the Planning for Transport Routes in the New Länder and in the Land Berlin VerkPBG, Gesetz zur Beschleunigung der Planungen für Verkehrswege in den neuen Ländern sowie im Land Berlin section 1 (1) no. 3, section 5 (1)
Summary of the facts
The claimant is seeking to have the defendant obligated to rescind the operating regulations established in 2007 in the planning approval decision (Planfeststellungsbeschluss, referred to hereinafter as the “planning approval”) that govern night-time flight operations of the commercial airport of Leipzig/Halle.
With the planning approval of 4 November 2004, the Regional Authority (Regierungspräsidium) of Leipzig determined measures serving to expand, and convert Leipzig/Halle airport in order to develop it into a hub for air freight traffic. Upon actions being brought by neighbouring residents, among them the claimant, the Senate placed the defendant under obligation to once again decide, taking account of the court’s legal opinion whether to restrict night-time flight operations, inasmuch as they did not concern freight flights serving the transport of express goods, above and beyond the regulations governing flight operations already in place. In all other regards, the Senate dismissed the actions (Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), judgment of 9 November 2006 - 4 A 2001.06 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 127, 95 <Musterverfahren> (model proceedings)).
The Regional Authority of Leipzig regulated night-time flight operations in a supplementary planning approval decision (Ergänzungsplanfeststellungsbeschluss) of 27 June 2007. Regulations A II.4.7.1. sentence 2, and A II.184.108.40.206. through A II.220.127.116.11. permit night-time freight and military aviation traffic to a large extent. The action brought by the claimant against the supplementary planning approval was dismissed by the Senate in its judgment of 24 July 2008 - 4 A 3001.07 - (BVerwGE 131, 316). The Federal Constitutional Court (BVerfG, Bundesverfassungsgericht) did not accept his constitutional complaints for adjudication with regard to this decision (BVerfG, decision of 15 October 2009 - 1 BvR 3474/08 ). An application brought before the European Court of Human Rights (ECtHR) was declared inadmissible by decision of 10 June 2014 - Application no. 25330/10.
The claimant is the co-owner of a plot of real estate on which he himself resides. It is located approximately 11.5 km to the east of the extension of the southern runway of the airport, within the night protection zone established by the planning approval. For this location, the planning approval forecasted a noise exposure in the night-time at a continuous noise level of Leq(3) = 51.2 dB(A), 20.3 noise events at LAmax ≥ 68 dB(A), and 1.2 noise events at LAmax ≥ 75 dB(A). Ventilation systems and sound-insulating windows had been installed in the sleeping rooms of the claimant’s residence, at the costs of the third party summoned to attend the proceedings as a party whose rights may be affected (Beigeladene, referred to hereinbelow as the “summoned third party”). These windows and systems, according to the planning approval, are to warrant a reduction of the noise level given inside the building, when the windows are closed, by 25 dB(A) as compared to the noise level outside of the building. According to the summoned third party, the maximum noise level measured in the sleeping rooms is below 50 dB(A).
In September of 2014, the claimant filed a petition that the provisions governing the night-time flight operations be withdrawn, and, as an alternative, that they be revoked, and that the proceedings for the supplementary planning approval be resumed or performed anew. The defendant rejected this petition. By filing his action, the claimant is continuing to seek this relief.
12 The action does not meet with success. It is admissible, but without merit.
22 II. The action is without merit. The claimant can neither demand of the defendant to withdraw or revoke the regulations objected to, nor can he demand that the proceedings be resumed.
23 1. The ancillary stipulations to the supplementary planning approval (Ergänzungsplanfeststellungsbeschluss) of 27 June 2007 do not support the claimant in the relief he is seeking.
24 The defendant has already taken account of ancillary stipulation A II.4.9.1. by issuing an administrative act amending the planning approval (Änderungsplanfeststellungsbeschluss) in 2009. The ancillary stipulation does not give rise to further-reaching claims. The ancillary stipulation A II.4.9.2. is a means for the authority competent of approving the plan (Planfeststellungsbehörde) to reserve the right to issue subsequent directives. This includes in particular the right to issue subsequent directives to demarcate the night protection zone, for the case that the area calculated by the summoned party according to an evaluation is found to extend, in the course of two consecutive years, beyond the boundaries of the night protection zone as approved in the plan, or beyond the night protection zone as given after the airport has been taken into operation, should this be larger. Thus far, no such case has occurred. It bears noting that the claimant could not benefit from a new demarcation of the night protection zone that “in particular” is planned to be performed, as his property is already located within this zone.
25 2. The claimant cannot demand that the regulations he is objecting to be withdrawn pursuant to section 1 of the Code of Administrative Procedure and Service of Administrative Documents for the Free State of Saxony (SächsVwVfZG, Gesetz zur Regelung des Verwaltungsverfahrens- und des Verwaltungszustellungsrechts für den Freistaat Sachsen) in conjunction with section 48 (1) first sentence of the Administrative Procedure Act (VwVfG, Verwaltungsverfahrensgesetz), nor can he demand that a discretionary decision be taken in their regard.
26 Pursuant to section 1 of said Act (SächsVwVfZG) in conjunction with section 48 (1) first sentence VwVfG, an unlawful administrative act may be withdrawn as a whole or in part, with effect for the future or for the past, also after it has become legally binding. The regulation also applies to planning approvals (BVerwG, judgment of 31 July 2012 - 4 A 7001.11 et al. - BVerwGE 144, 44 para. 23) under the precondition that the administrative act is unlawful. Since the claim to withdrawal cannot extend beyond what can be achieved through on-time action for annulment(BVerwG, judgment of 31 July 2012 ibid.), a claim of a third party to withdrawal, or to a sound discretionary decision (ermessensfehlerfreie Entscheidung), will be an option only if the planning approval violated precisely a right enjoyed by this third party. This situation is not given in the instant case.
27 The situation in fact and in law as it existed at the time the administrative act was issued is decisive for the review of its lawfulness (BVerwG, judgments of 9 May 2012 - 6 C 3.11 - BVerwGE 143, 87 para. 43 et seq. and of 28 May 2015 - 1 C 24.14 -para. 18). Upon the judgment of the Senate (of 24 July 2008 – 4 A 3001.07 - BVerwGE 131, 316 para. 27) having gained legal force, it has been bindingly established for the parties involved, pursuant to section 121 number 1 of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung) that the supplementary planning approval (Ergänzungsplanfeststellungsbeschluss) of 27 June 2007 did not, at the time of its enactment, violate the rights enjoyed by the claimant. Nothing else results from the reasoning of the European Court of Human Rights (ECtHR) in its decision of 10 June 2014 – Application no. 25330/10 - para. 22 et seqq.) which was - with regard to article 35 (1) of the European Convention on Human Rights (ECHR) - occasioned by considerations on procedural law.
28 In some instances, German courts do allow an administrative act to be withdrawn pursuant to section 48 (1) first sentence VwVfG, in particular where administrative acts with continuous effects (Dauerverwaltungsakte) are concerned, if such administrative acts subsequently have become unlawful (cf. BVerwG, judgments of 26 May 1989 - 8 C 87.87 - BVerwGE 82, 99; of 9 May 2012 - 6 C 3.11 - BVerwGE 143, 87 para. 43, and of 28 June 2012 - 2 C 13.11 - BVerwGE 143, 230 para. 15). From the outset, the application of section 48 (1) first sentence VwVfG must not be applied in cases in which a planning approval has become subsequently unlawful under aviation law (luftverkehrsrechtliche Planfeststellungsbeschlüsse). The reason is that both, for the justification in terms of planning of a project governed by aviation law as well as for the discretionary planning decision (planerische Abwägung), the situation in fact and in law as it existed at the time the administrative act regarding the plan was issued is decisive (BVerwG, judgment of 13 December 2007 - 4 C 9.06 - BVerwGE 130, 83 para. 68 and decision of 22 June 2015 - 4 B 61.14 - juris, para. 5). Thus, a third party will be prohibited during annulment proceedings from asserting the unlawfulness of a planning approval by relying on changes to the situation in fact and in law that occurred after the administrative act in question was issued. It would contradict the above principle if the claimant, by claiming such changes, was granted a right to withdrawal of the administrative act, or to a sound discretionary decision (ermessensfehlerfreie Entscheidung) in this regard.
29 3. Nor is the claimant entitled to demand a revocation of the regulations forming the subject matter of the dispute, or a discretionary decision in their regard.
30 a) The complete or partial revocation of an administrative act has its legal basis in section 1 SächsVwVfZG in conjunction with section 49 VwVfG.
31 While this stipulation of the law is in fact applicable also to planning approvals, the possibility to revoke them in scenarios of this kind is, in accordance with the principle of proportionality, the means of last resort. Third parties may demand such a revocation only if obligations as to protection pursuant to section 1 SächsVwVfZG in conjunction with section 75 (2) second sentence VwVfG are not sufficient to remedy the situation (BVerwG, judgment of 21 May 1997 - 11 C 1.96 - BVerwGE 105, 6 <13> and decision of 16 December 2003 - 4 B 75.03 (…). It is precisely this aspect which provides for the increased degree of the binding nature of planning approvals.
32 The precedence given to subsequent obligations as to protection does not allow regulations regarding night-time flight operations to be revoked in order to - by doing so - provide the claimant with more effective protection against aircraft noise. Pursuant to section 1 SächsVwVfZG in conjunction with section 75 (2) second sentence VwVfG, any party affected may demand that measures be taken or structures be erected and maintained to counteract detrimental effects in cases in which unforeseeable effects of the project or structures built in accordance with the approved plan become apparent only after the plan has become non-appealable. The non-foreseeability in this sense extends also to cases in which, after the plan was issued, harmful or dangerous effects become apparent because of new scientific insights and technical advances (BVerwG, decision of 21 January 2004 - 4 B 82.03 (…). However, it is neither apparent, nor has it been submitted, that further obligations as to protection in the case of new scientific findings regarding health detrimental effects because of aircraft noises - as the claimant alleges - could not be counteracted especially through improved structural noise protection measures.
33 Whether the claimant is entitled to obtain subsequently issued obligations as to protection pursuant to section 1 SächsVwVfZG in conjunction with section 75 (2) second sentence VwVfG was not the subject matter of the action filed; it bears noting that the Federal Administrative Court would not be the court of first instance having jurisdiction in this regard (according to consistent jurisprudence; cf. BVerwG, decision of 24 June 2010 - 9 A 36.08 - (…). However, the Senate does note that the claimant’s efforts to demonstrate a new scientific assessment of the exposure to aircraft noise to which he is subject cannot be said to have met with success. At any rate, the vast majority of the documents he has submitted address the matter of which exposure to aircraft noise requires noise protection measures to be taken. But this is not of relevance for the claimant, since his building has been equipped with structural measures of noise protection. Likewise, the expert he involved conceded during the oral hearing that the claimant’s exposure seemed relatively low when taking account of the structural noise protection measures. Notwithstanding the above, this matter does not need to be ruled on by the Federal Administrative Court.
34 b) The precedence given to section 1 SächsVwVfZG in conjunction with section 75 (2) second sentence VwVfG does not contravene a revocation pursuant to section 1 SächsVwVfZG in conjunction with section 49 VwVfG only insofar as detrimental effects are at issue that cannot be counteracted by subsequent obligations as to protection. The claimant is asserting such detrimental effects in a broader sense where the protection of the sleeping hours is concerned. Furthermore, he is challenging the assessment regarding the need for night-time flying as made in the discretionary planning decision (planerische Abwägung).
35 (1) Inasmuch, the prerequisites stipulated by section 1 SächsVwVfZG in conjunction with section 49 (2) first sentence no. 3 VwVfG are not fulfilled.
36 According to these statutory regulations, a lawful, beneficial administrative act may be revoked as a whole or in part with effect for the future also after it has become non-appealable, if the authority were to be entitled, as a consequence of circumstances arising subsequently, to not issue the administrative act, and if the public interest were at danger without such revocation. The changed assessment of the given facts can also mean a subsequent change in circumstances in the sense of section 49 (2) first sentence no. 3 VwVfG. By contrast, an individual opinion that thus far has not found general acceptance in the scientific community will in principle not constitute a new fact that is able to justify a revocation pursuant to section 49 (2) first sentence no. 3 VwVfG (BVerwG, decision of 27 May 2015 - 3 B 5.15 - para. 12).
37 The claimant asks to obtain protection against disruption of sleeping hours in the sense of a protection against night-time activities by aircraft movements (cf. BVerwG, judgment of 9 November 2006 - 4 A 2001.06 - BVerwGE 127, 95 para. 75). This does not involve any change in circumstances. As it did in the Act on Protections against Aircraft Noise (Fluglärmschutzgesetz), the legislator can comply with its obligation to protect the right to physical integrity as resulting from article 2 (2) first sentence of the German Basic Law (GG, Grundgesetz) by determining threshold values for energy-equivalent continuous noise levels as a means of protection against aircraft noise, while also determining a limited number of maximum noise levels (BVerfG, decision of 20 February 2008 - 1 BvR 2722/06 -para. 82; BVerwG, decision of 25 March 2009 - 4 B 63.08 - para. 11 (…)). It is not apparent that, in derogation therefrom, the opinion might have come to prevail that the protection of sleeping hours as demanded by the law contravened the implementation of night-time flights, without their acoustic perceptibility being accorded any relevance whatsoever.
38 The claim brought by the claimant as to the assumptions made by the planning authority (Planfeststellungsbehörde) regarding the necessity of night-time flights being based on false assumptions does not evidence, in and of itself, any subsequently occurring facts in the sense of section 1 SächsVwVfZG in conjunction with section 49 (2) first sentence no. 3 VwVfG. The only statement addressing the specific situation at the Leipzig/Halle airport is a paper by the expert counsel involved by the claimant, which dates from 2008. However, the objections raised therein have already been rejected by the Senate (BVerwG, judgment of 24 July 2008 - 4 A 3001.07 (…) para. 52, 68 (…)).
39 (2) Likewise, the prerequisites for a revocation pursuant to section 1 SächsVwVfZG in conjunction with section 49 (2) first sentence no. 5 VwVfG have not been met. According to these provisions, a lawful, beneficial administrative act may be revoked, as a whole or in part with effect for the future, also after it has become non-appealable, in order to prevent or remedy grave disadvantages for the common good. By stipulating that a revocation is to serve to prevent or remedy grave disadvantages for the common good, the statutory regulation sets particularly strict requirements for the grounds for revocation, but otherwise is not premised on any prerequisites. Accordingly, the right that is being impaired must rank with common interests, and its violation must be so serious that it cannot be accepted or allowed to continue, also and in particular in the interests of the general public (BVerwG, decision of 27 May 2015 - 3 B 5.15 (…) para. 16). The claimant’s exposure to aircraft noise does not reach that level of severity.
40 4. The claimant is not entitled to have the proceedings resumed.
41 Pursuant to section 1 SächsVwVfZG in conjunction with section 72 (1) VwVfG, section 51 of the VwVfG is not applicable in planning approval procedures (Planfeststellungsverfahren) (BVerwG, judgments of 20 October 1989 4 C 12.87 (…); of 21 May 1997 - 11 C 1.96 - BVerwGE 105, 6 <11> and of 31 July 2012 - 4 A 7001.11 et al. - BVerwGE 144, 44 para. 23). No grave concerns in terms of constitutional law regarding this provision are apparent since section 48, section 49, section 75 (2) second sentence VwVfG suffice in order to take account of any changes to the situation in fact and in law (…).
42 section 1 SächsVwVfZG in conjunction with section 72 (1) VwVfG thus rules out any resumption of the proceedings on the basis of a petition by the party affected pursuant to section 51 (1) VwVfG. However, since section 51 VwVfG is not applicable in its entirety, any resumption in the broader sense is also ruled out (…). The powers thus designated to the authority to resume administrative proceedings, that have been concluded, to the benefit of a party affected and following a due assessment of the circumstances and in its administrative discretion, without the prerequisites stipulated by section 51 subsections (1) through (3) VwVfG being given - must have a statutory basis in order to overcome the legally binding nature of the administrative act (BVerfG, decision of 23 June 1988 - 2 BvR 260/88 ; BVerwG, judgment of 22 October 2009 - 1 C 15.08 - BVerwGE 135, 121 para. 24). This will apply at any rate if an administrative act – as is the case in the matter at hand – previously has been confirmed by a court. The requisite statutory basis can only be section 51 (5) VwVfG, the application of which, however, is ruled out by section 1 SächsVwVfZG in conjunction with section 72 (1) VwVfG.(…)