CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 4 juin 2024

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The applicants alleged a violation of their rights under Article   6   §   1 and Article 8 of the Convention. THE FACTS 2.     The applicants, Mr John Büttner (“the first applicant”) and Ms   Jutta   Krebs (“the second applicant”), are German nationals, who were born in 1967 and 1939 respectively and live in Zeuthen. They were represented before the Court by Ms F. Hess, a lawyer practising in Leipzig. 3.     The Government were represented by one of their Agents, Mr   H. ‑ J.   Behrens, of the Federal Ministry of Justice. The circumstances of the case 4.     The facts of the case may be summarised as follows.      Background to the case 5.     Berlin was originally serviced by three airports, Tempelhof, Tegel and Schönefeld. In the early 1990s the authorities began making plans to consolidate the German capital’s air traffic capacity into a single airport. In 1996 a political decision was taken to further develop the site of the existing Berlin Schönefeld Airport, situated 18 km south-east of Berlin, as the new Berlin Brandenburg Airport (“the airport”). 6 .     The applicants are homeowners in the municipality of Zeuthen, which is situated south of Berlin. Their homes are situated respectively 7.5 km and   9   km east of the centre of the airport’s southern runway. 7.     The body dealing with the planning approval procedure ( Planfeststellungsverfahren ) for the airport was the Ministry of Urban Development, Habitation and Transport of the Land of Brandenburg ( Brandenburgisches Ministerium für Stadtentwicklung, Wohnen und Verkehr – hereinafter “the planning authority”). In 1998 the planning authority created a working group to prepare an outline plan ( Grobplanung ) of the arrival and departure flight paths. The outline plan was a prerequisite for the assessment within the planning approval procedure of the expected impact of the airport on the surrounding area. The working group included, inter alia, the company in charge of German air traffic control ( Deutsche Flugsicherung GmbH – hereinafter “DFS”) and the Project Planning Company Schönefeld Ltd ( Projektplanungsgesellschaft Schönefeld GmbH – hereinafter “the PPS”), a publicly owned company created by the Länder (federal States) of Berlin and Brandenburg to carry out the development of the airport. 8 .     On 30 March 1998 DFS presented the outline plan for the arrival and departure flight paths for the airport’s two runways. The flight paths in both operating directions (eastwards and westwards) were intended to run in parallel for several kilometres extending in a straight line from the respective runways (hereinafter “straight flight paths”). While this was not expressly indicated in the plan, the flight paths were based on the premise that the runways would not be used for simultaneous independent departures. On the basis of those plans, the PPS calculated the configuration of the flight paths for the data acquisition system ( Datenerfassungssystem – hereinafter “the   DES”), the dataset required for conducting the necessary health and environmental studies. The appropriate environmental studies, notably with regard to the noise impact of the airport on the surrounding area, were commissioned on the basis of those data. 9 .     On 20 August 1998 DFS informed the planning authority that simultaneous independent departures could not be realised with the planned straight flight paths. To use the runways simultaneously would require the flight paths to diverge ( abknicken ) to the north or south by at least 15 degrees shortly after take-off. At a meeting on 29 September 1998 DFS informed the   PPS that it would prepare a modified outline plan for the arrival and departure paths taking this requirement into account. 10 .     On 7 October 1998 the PPS’s managing director, Mr H., wrote to the Federal Ministry of Transport ( Bundesministerium für Verkehr – hereinafter “the BMV”). His letter, in so far as relevant, read as follows: “...DFS requires a divergence of 15 degrees for all departures and will shortly modify its outline plan. As a consequence, it will be necessary to rework the DES, notably because of the modified flight path configuration. Reworking the DES will require the revision of the entirety of the health and environmental studies which have been conducted on the basis of the reliability of DFS’s outline plan. This will significantly increase the costs and cause a delay in the planning process of about three months. Proposed solution: We ask the BMV to use its influence with DFS to have DFS modify its statement regarding the current DES. DFS’s statement is important for the planning approval procedure. It should make it clear that the current flight path configuration can be accepted in principle. The statement could point out that additional coordination of departures by DFS would be necessary, which, assuming unchanged technical and technological conditions, could lead to movement restrictions during peak periods when the runway system reaches the limit of its capacity. The situation would be similar to that at Munich Airport and would be acceptable to the applicant. Finally, it should be noted that DFS’s final determination of the flight paths will occur only when the runway system becomes operational and the technical and technological conditions at that time will have to be taken into account.” 11 .     After corresponding with both the BMV and the planning authority, DFS decided to forgo modification of the outline plan. On 26 October 1998 DFS notified the planning authority that the flight path configuration used in the health and environmental studies commissioned by the PPS corresponded in principle to DFS’s current plans, but it again stated that simultaneous independent departures would require departure routes with a 15-degree divergence. 12 .     On 17 December 1999 the company dealing with the airport development filed a request for planning permission with the planning authority. Because of the size of the project and its symbolic significance as the new airport for the German capital, the planning approval procedure received considerable coverage in the national media. 13 .     In 2000 the public consultation about the airport development began. On 5 July 2000, during the consultation process, DFS issued a statement which essentially repeated its statement of 26 October 1998, including the reference to the need for divergence in the departure routes. 14 .     The planning documents were subsequently publicised in the municipalities which the outline plan had indicated would be most affected by aircraft noise. The documents made available to the public included maps showing the projected flight paths and the extent to which different areas would be impacted. DFS’s letter of 26 October 1998 and the statement of 5   July 2000 were not among the documents publicised. 15 .     On 13 August 2004 the planning authority approved the planning application in its decision ( Planfeststellungsbeschluss ) approving the development of the new single airport on the site of Berlin Schönefeld Airport. The decision stated that the creation of a system of parallel runways with simultaneous independent departures was one of the main reasons for the development of the airport, as simultaneous independent use of both runways was required to handle the predicted volume of flight operations. With regard to the flight paths, the planning decision stated, in particular: “7.1.3.1 Arrival and departure procedures The determination of arrival and departure procedures are not the subject of this planning approval procedure. Under Article 27a of the Air Traffic Regulations, flight procedures including flight paths, flight levels and reporting points are determined by order of the BAF [ Bundesaufsichtsamt für Flugsicherung – the Federal Supervisory Authority for Air Navigation Services, hereinafter ‘the BAF’]. Given that arrival and departure procedures are an important input variable, especially for determining the air pollution and noise emissions of the expansion for which permission is sought, an outline plan of the arrival and departure procedures was prepared by DFS. The flight paths are based on the current flight paths for Berlin Schönefeld Airport and the location of DFS’s existing radio navigation systems and ensure full integration of the airport as it is to be developed with DFS’s national and international flight path system. From the planning authority’s point of view, the existing flight paths represent a persuasive concrete basis for determining the impact of the planned expansion. ... 10.1.4 Determination of the exposure to aircraft noise The noise pollution caused by aircraft noise in the vicinity of the airport was determined with reference to the expansion for which approval was sought, taking into account the nature and scope of the flight operations foreseen. This meant, firstly, that it was necessary to produce a detailed projection of the flight operations. The company developing the airport submitted traffic volume predictions for this purpose, including a model flight schedule. Secondly, aircraft noise exposure in the vicinity of an airport can only be calculated on the basis of information concerning approach and departure procedures. The arrival and departure procedures are not the subject of this planning approval procedure and will only be determined immediately before the airport starts operating after expansion, by way of a statutory instrument made by the Federal Aviation Office on the basis of plans produced by DFS. In order to ensure that the necessary aircraft noise calculations can nevertheless be carried out to the extent required, DFS – acting on behalf of the Federal Ministry of Transport, Construction and Housing – has drafted an outline plan of approach and departure procedures for the expanded Berlin Schönefeld Airport, which has been used as the basis for the aircraft noise calculations.” 16 .     On the basis of the straight flight paths (see paragraph 8 above), the planning decision also determined the areas where residents could demand protective measures or compensation ( Schutz- und Entschädigungsgebiete , hereinafter “protected areas”). Sound insulation could be provided on request for homeowners in areas with a LAeq (equivalent continuous sound level) of 60 dB(A) (decibels weighted to frequencies in the middle of human hearing) during the day (6 a.m. to 10 p.m.) or a LAeq of 50 dB(A) during the night (10   p.m. to 6 a.m.) or, alternatively, six noise events per night with a noise   level of 70 dB(A). The noise levels were assessed on the basis of the six months with the heaviest volume of air traffic. The planning decision stated, furthermore, that the designation of the protected areas would be subject to change when a modification of the flight paths led to a change of more than 2 dB(A). 17 .     Approximately 4,000 residents brought actions in the Federal Administrative Court against the planning decision. On 16 March 2006 the court ruled on several test cases. It dismissed the applications for the planning decision to be quashed, finding that the planning authority had properly balanced the competing interests. However, the court ordered the planning authority to add further protective measures, in particular, additional restrictions on night flights. On 20 October 2009 the planning authority issued a supplementary decision with the required modifications. 18 .     On 6 September 2010 DFS presented its plans for the final flight paths. In contrast to the outline plan, the flight paths for aircraft taking off westwards from the northern runway diverged northwards by more than 15 degrees so that the aircraft would overfly Teltow, Stahnsdorf and Kleinmachnow. Aircraft taking off from the southern runway would diverge approximately 15 degrees to the south in either direction. 19 .     On 10 December 2010 a newspaper published the letter from Mr H. to the BMV (see paragraph 10 above). Further investigations brought to light the sequence of events outlined above which had led to the planning decision being based on straight flight paths despite DFS’s initial objections. 20 .     DFS’s outline plan, on which the planning decision was based, projected a noise level or LAeq during the day of 51.8 dB(A) for the first applicant and 50.5 dB(A) for the second applicant and a night-time LAeq of   44.4 dB(A) and 43 dB(A) respectively. The Government’s projected levels, based on the flight paths presented by DFS on 6 September 2010 (see paragraph 18 above), were increased to a daytime LAeq of 57.2 dB(A) for the first applicant and 55.9 dB(A) for the second applicant and a night-time LAeq of 49.7 dB(A) and 48.4 dB(A) respectively. On 12 February 2012 the BAF issued the 247th Ordinance Implementing Air Traffic Regulations ( 247.   Durchführungsverordnung zur Luftverkehrs-Ordnung ; hereinafter “the   247th DVO”), which determined the flight paths for the planned start of operations at the airport in 2012. The flight paths had been determined on the basis of the plans presented by DFS on 6 September 2010 (see paragraph 18 above). According to the Government, the projected noise levels based on the 247th DVO were a daytime LAeq of 54.1 dB(A) for the first applicant and   52.7   dB(A) for the second applicant and a night-time LAeq of 49.1 dB(A) and   48 dB(A) respectively, based on the 247th DVO. The applicants’ homes were therefore outside the protected areas (see paragraph 16 above), as they still are. The applicants asserted that the maximum noise level to which they could be exposed went up to 89 dB(A) during the day and that during the night they could expect it to rise to 57 dB(A) and 54 dB(A) at least six times. Because of delays, the airport was not opened until 31 October 2020.      The proceedings brought by the applicants 21 .     On 15 December 2010 the applicants, whose homes are located approximately 7.5 km and 9 km east of the centre of the southern runway of the airport (see paragraph 6 above), asked the planning authority to revoke the planning approval or, in the alternative, to amend that decision by prohibiting the simultaneous independent operation of both runways. They argued that the planning decision was unlawful, as it was based on the simultaneous independent operation of both runways and the use of straight flight paths, even though those two premises could not be reconciled, as had become apparent when DFS had presented its plan for the final flight paths on 6 September 2010 (see paragraph 18 above). Simultaneous independent departures from both runways, which had been authorised, required the use of diverging flight paths. The use of such flight paths led to different areas and residents being affected by the noise of the airport from those projected when the planning decision was taken. The planning authority had knowingly used unfeasible flight paths in the planning approval procedure and had thereby deceived the applicants about the expected flight paths and noise impact of the project. The applicants would be subjected to significantly more noise impact if divergent flight paths were to be used. The use of straight flight paths would require prohibiting the simultaneous independent operation of both runways. 22.     After the planning authority rejected their request, the applicants brought an action in the Federal Administrative Court on 23 March 2011. Besides reiterating in essence the submissions they had made to the planning authority, they added that the incorrect projection of the flight paths rendered the choice of location for the airport flawed. The precise number of residents living in the zone where the noise level would reach 62 dB(A) had been decisive for that choice. The planning decision had assessed the noise impact based on a projection of the residents who were going to be affected by the use of straight flight paths; the modification of the flight paths resulted in modifications in the noise impact assessment and rendered that assessment flawed in respect of the protected areas, the runway configuration and the planning decision as a whole. Only a revocation of the planning decision could prevent the process representing a circumvention of the applicants’ right to be heard, in breach of constitutional and European Union law. 23.     On 21 September 2011 the planning authority declared that the designated protected areas would be modified in accordance with the flight paths without requiring the change in flight routes to be followed by a change of 2 dB(A) in the tolerated noise impact (see paragraph 16 above). 24 .     Following an oral hearing, the Federal Administrative Court dismissed the applicants’ action as ill-founded by a judgment of 31 July 2012. It found that Article 48 of the Code of Administrative Procedure, which allowed for the revocation of an unlawful administrative act even after it had become final ( unanfechtbar ) (see paragraph 48 below), was applicable to the planning decision. However, the right to have a planning decision revoked did not go further than the right to have a planning decision quashed in cases where the application for quashing had been made within the appropriate time-limit. Provisions concerning project stability ( Planerhaltungsvorschriften ) also modified the right to have a planning decision revoked. The applicants could not request the revocation of the planning decision because there were no legal errors in it which could have led to a right to have the decision quashed. 25 .     The Federal Administrative Court found that the outline plan based on straight flight paths was adequate for an estimation of the noise impact in the event of diverging flight paths, with regard to both the choice of location for the airport and the decision to approve the development of the airport at the site of Berlin Schönefeld Airport, and the planning authority’s use of the original outline plan had not been based on inappropriate considerations ( sachfremde Erwägungen ). The planning decision did not give insufficient weight to the applicants’ interests (see paragraphs 26-32 below). While the planning approval procedure had some procedural defects, namely as to the carrying out of the public consultation and the assessment of the airport’s environmental impact, clearly the procedural defects had not influenced the planning decision (and so were inconsequential errors) and, therefore, the planning decision could not be revoked on those grounds (section 10, subsection (8), second sentence, of the Civil Aviation Act and Article 1 of the Code of Administrative Procedure for Brandenburg taken in conjunction with Article 46 of the Code of Administrative Procedure; see paragraphs 33-37, 44 and 48 below), for the following reasons. 26 .     With respect to the choice of the airport’s location, the court observed that the appropriate planning authority, which had issued the decision regarding the development of the airport at the site of the old Berlin Schönefeld Airport in a separate procedure on 28 October 2003, had compared the noise impact of the three airports operating in and around Berlin with the single-airport model. To that end, the planning authority had compared the number of residents who lived within a noise contour of at least 62 dB(A) and had concluded that the new, single airport would significantly reduce the number of residents affected by airport noise. At the time, approximately 136,000 residents were living within a 62 dB(A) noise contour of the three airports operating in and around Berlin, compared with only 31,000 residents based on the plans for the new airport. The planning authority had not relied on the exact number of persons affected by airport noise, but on a rough estimate. In particular, it had not adjusted the number of passengers (12.59 million in 2001 for the three operating airports) to the projected number of 30 million passengers which it had used with respect to the new, single airport; had the planning authority done so, the comparison would have come down even more in favour of locating the airport at Schönefeld, given that the areas around the Tegel and Tempelhof airports were more densely populated. In view of that rough estimate, the planning authority was not required to make a separate assessment with respect to flight paths with a divergence of up to 15 degrees north or south. While the departure routes of such diverging flight paths would to some extent affect different areas from those affected by the straight flight paths on which the estimate had been based, the areas affected by the diverging flight paths were not, or not significantly, more densely populated than the areas affected by straight flight paths. The modified flight paths therefore did not change on a significant scale ( Größenordnung ) the number of residents within a 62 dB(A) noise contour. 27.     The Federal Administrative Court rejected the submission made by other plaintiffs in separate proceedings that an additional 80,000 to   100,000   residents were impacted by airport noise based on the flight paths presented by DFS on 6 September 2010 (see paragraph 18 above) compared to those affected under the outline plan. That submission was not plausible in so far as the number of residents within a 62 db(A) noise contour was concerned. Kleinmachnow, Teltow and Stahnsdorf would not fall within that contour even if aircraft directly overflew those municipalities. The court found that between 6,500 and 7,000 residents of various municipalities, including Zeuthen, would be newly affected by noise based on diverging flight paths, while between 3,000 and 4,000 residents would be less affected. The court rejected the claim that the requirement for flight paths to have a 15 ‑ degree divergence upset the balancing exercise which had led to the choice of site for the airport, finding that that claim had no basis in fact. 28 .     The Federal Administrative Court went on to find that the planning decision was not rendered flawed, in the sense of having been based on an inappropriate balancing of interests, by the fact that the planning authority had relied on the outline plan with straight flight paths and had not considered the requirement for the flight paths to diverge by 15-degrees. The planning authority had examined the noise impact of the airport on the surrounding residential area based on DFS’s outline plan and the population density was broadly similar in the areas under the straight flight paths and the modified flight paths with a 15-degree divergence. The diverging flight paths did not suggest that the location of the airport should be assessed differently from the way the possible locations had been assessed on the basis of the straight flight paths. As a rule, the approval of the chosen location for an airport remained valid if flight paths other than those used in the planning approval procedure were decided on, provided that the nature and scope of the expected noise impact, and the overall number of persons affected, had been realistically reflected in the planning decision. It would not be appropriate to base a decision to approve the development of an airport on specific flight paths without having regard to the possibility that the paths might be changed in a way which might, in turn, entail changes in who would be affected by aircraft noise. 29.     The Federal Administrative Court reiterated the finding at which it had arrived in separate proceedings brought by different plaintiffs, to the effect that in assessing the noise impact on the basis of the outline plan in coordination with DFS, the planning authority had not been required to consider that flight paths with a divergence of more than 15 degrees might be set. In those separate proceedings, the court had found that the planning authority, in particular, did not have to base its assessment on the flight path subsequently presented by DFS which diverged by more than 15 degrees to the north and led over Stahnsdorf, Teltow and Kleinmachnow (see paragraph   18 above). 30 .     As for the applicants’ submission that the planning authority’s decision to use the original outline plan had been based on inappropriate considerations ( sachfremde Erwägungen ), the court observed that the decision to use the original outline plan despite DFS’s warning had indeed posed a legal risk since the planning authority could not have foreseen the domestic courts’ requirements regarding the precision of the planning data. An obvious means to avoid such risk would have been to revise the outline plan to reflect the 15-degree divergence. However, this would not have ruled out the possibility of setting flight paths other than those originally projected. Given the residential areas around the airport, it was apparent even at the time that the basis of the balancing exercise would not differ significantly if the arrival routes remained the same and the departure routes diverged by 15   degrees. For that reason, the decision to continue with the plans based on the straight flight paths did not appear unreasonable. The letter from the PPS’s managing director, Mr H., which stated that modifying the flight paths in the outline plan would mean that studies commissioned before that point would have to be revised, causing additional delay and expense (see paragraph 10 above), did not change that assessment. While such aspects of procedural economy could not by themselves justify relying on the original outline plan, the court reiterated that the outline plan was an adequate basis for estimating the scale of the noise impact in the event of simultaneous independent use of the runways. The flight paths had not been determined in the planning decision but had merely been the basis for estimating the impact of the air traffic. The feasibility of the simultaneous independent use of both runways exactly as suggested in the outline plan had not been a decisive element in the decision. 31 .     The Federal Administrative Court further found that it could be left open whether the failure to take the 15-degree divergence requirement into account had led to a flawed analysis of the runway configuration, as such a flaw would not, in any event, have infringed the applicants’ rights. Only a constant noise impact of a daytime LAeq of 62 dB(A) was considered relevant for the balancing exercise performed in analysing the runway configuration. The applicants were not affected to a great extent if the flight paths diverged by up to 15 degrees. With regard to flight paths diverging by up to 15 degrees southwards, the planning authority had submitted in the proceedings in the Federal Administrative Court that it had calculated a daytime LAeq of 53   dB(A) for the first applicant and 55 dB(A) for the second applicant. The applicants had not contested those calculations. It was plausible that the daytime LAeq for the applicants would not reach 62 dB(A). The area which would become part of the 62 dB(A) noise contour because of departure routes which diverged by 15 degrees south would not include the applicants’ properties, which were located some 6.3 km and 8 km respectively away from the eastern end of the southern runway. 32 .     The Federal Administrative Court added that the planning authority had to examine the entirety of the area surrounding the airport which could be affected by the noise from it, as it had to consider the possibility that flight paths other than those projected in the outline plan might be set later. Where the projection of the flight paths was made in coordination with DFS or the   BAF, the planning authority could, as a rule, assume that flight paths which the BAF might later determine would not significantly increase the nature and extent of the impact of the noise from that estimated in the planning approval procedure. As a general rule, a planning authority would be able to indicate in a planning decision that noise from heavy use of departure paths had to be avoided in certain areas, for example because they were densely populated, and any such indication in a planning decision had to be taken into account by the BAF when it subsequently determined the flight paths. The fact that no provision had been made in the planning decision for the possibility that the BAF would subsequently set flight paths that differed from those projected in the outline plan could not call the approval of the development of the airport at the Schönefeld site into question and therefore could not entitle the applicants to have the planning decision revoked. 33 .     As regards the procedural defect in the public consultation, the court observed that the plans had been put on display in all the municipalities near the airport which, on the basis of the diverging flight paths, fell within the relevant 62 dB(A) noise contour except the municipality of Teltow, and also beyond that area. The plans should have been put on display in Teltow, as well as possibly some additional municipalities located in the outskirts of the area affected by aircraft noise, even though they were outside the 62 dB(A) noise contour. The planning authority had defined areas as likely to be affected by airport noise if they were located in a 55 dB(A) noise contour, or within a certain designated area extending beyond that noise contour, and the plans had to be displayed in any areas which would be affected by aircraft noise so as to provide data for the balancing exercise based on the divergent flight paths. 34 .     However, having regard to the considerable margins used to compare the relative noise impact of the planned airport and the existing airports in and around Berlin, the court ruled out any conclusion that the participation of the public in Teltow, Kleinmachnow and possibly other municipalities where the plan had not been put on display would have led (i)     to a different choice of site for the airport; (ii)     to the development of the airport at the site of the existing Berlin Schönefeld Airport not being approved; or (iii)     to a different outcome as regards the runway configuration. The classification of the site of the airport as being within the rural suburban area ( Verflechtungsbereich ) – close to the city, but outside the most densely populated area ( Verdichtungsbereich ) – would not have been different if the public in municipalities located further away from the airport had been consulted. The planning authority had relied, first and foremost, on the noise impact within the protected areas. In view of the considerable weight attached to those severely impacted by noise, the potential additional participation of residents who were subject to a lesser degree of noise impact would not have changed the outcome of the balancing exercise. Those residents could not have raised different issues about the noise impact from those raised by the residents who did participate in the planning approval procedure. At most they could have argued that the planning authority had to examine whether to provide guidelines for the determination of flight paths, so as to ensure that the approval of the development of the airport at the Schönefeld site was proportionate if flight paths set later were to differ from those projected in the outline plan. However, the absence of such guidelines as to setting flight paths in the planning decision could, at the most, warrant an amendment of the planning decision, but not its revocation. The court observed that the municipalities in which the plans should have been put on display were located north of the pre-existing northern runway, which had not been considered in the analysis of the runway configuration, and that none of those municipalities were located in the area relevant to the runway configuration analysis. The idea that that assessment would have had a different outcome if the plans had been put on display in the municipalities in question could therefore be ruled out. 35 .     The Federal Administrative Court added that the finding of a lack of a causal link between the procedural error and the planning decision was compatible with European Union (EU) law. Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, and formerly Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC, was only applicable where legal action were taken against planning decisions. The proceedings at issue concerned the possibility of the revocation of a planning decision which had become final, that is, an additional type of process provided for under domestic law and outside the scope of the above-mentioned directives, it being noted that the applicants had not challenged the planning decision of 13 August 2004 at the time, even though they had had the opportunity to do so. 36 .     The court observed that the applicants had been heard: the plans had been put on display in the municipality of Zeuthen, where they lived, and the material put on display had the necessary “trigger effect” ( Anstoßwirkung ), that is to say, it had allowed members of the public to assess whether and to what extent they could be affected by the environmental impact of the project. It could be discerned from the location of their homes and the noise contours indicated in the outline plan whether they could possibly be affected by aircraft noise in a manner relevant for the balancing exercise. Their homes were located less than 1,500 metres outside the area of the daytime LAeq   55   dB(A) noise contour based on the outline plan. The flight paths themselves were, by law, to be set by a separate process rather than as part of the planning approval procedure, which entailed the possibility that the final flight paths would differ from those described in the outline plan. 37 .     With regard to the procedural defect in the assessment of the environmental impact of the airport, the Federal Administrative Court considered that the assessment should not have been limited to the areas that would have been impacted under the outline plan prepared by DFS. Rather, the assessment should have extended to the entire area which might be affected, including at least the area affected by the departure routes when they diverged by 15 degrees, as required by DFS for simultaneous independent departures. However, the failure by the planning authority to take that area into account could not possibly have influenced the outcome of the planning approval procedure, and therefore that procedural defect could not have led to the revocation of the planning decision. As far as the residential areas were concerned, the court relied on, inter alia , the reasons set out in paragraphs   25 ‑ 30 above. As far as recreational areas were concerned, it observed that there were no large recreational areas close to the airport which were located under either the straight or the diverging departure routes and that there were no indications that the impact of departure routes with a 15 ‑ degree divergence on recreational areas located further away was significantly more disadvantageous than had the flight paths been straight. The lack of environmental assessment with regard to areas not affected by departure routes with a 15-degree divergence could, at the most, have resulted in guidelines for the determination of flight paths. 38 .     Lastly, the Federal Administrative Court rejected as ill-founded the applicants’ alternative claim by which they had sought the prohibition of the simultaneous independent use of both runways. It found that modifying the protected area (see paragraph 16 above) was sufficient. 39.     On 27 December 2012 the applicants lodged a constitutional complaint with the Federal Constitutional Court, alleging a breach of a number of their fundamental rights, including their property rights under Article 14 § 1 of the Basic Law ( Grundgesetz ) and their right to effective legal protection under Article 19 § 4 of the Basic Law (see paragraph 43 below). They complained, in particular, that the Federal Administrative Court had wrongfully found that the planning decision had been lawful, despite acknowledging that that decision had knowingly been based on incorrect flight paths. The application of Article 46 of the Code of Administrative Procedure to a procedural error arising from officials’ deliberate acts had disregarded the procedural aspects of the applicants’ constitutional rights, as well as the requirement of an effective remedy. By assessing whether the impact of the airport on residential areas based on divergent flight paths was comparable to that based on straight flight paths instead of reviewing the lawfulness of the planning authority’s decision, the Federal Administrative Court had carried out all appropriate steps of the balancing exercise for the first time and thereby breached their rights. 40 .     On 24 October 2017 the Federal Constitutional Court declined to accept the applicants’ constitutional complaint for adjudication. It found, in particular, that the Federal Administrative Court’s application of Article 46 of the Code of Administrative Procedure did not infringe the applicants’ rights of property or their right to effective legal protection. That court had shown that neither the location nor the runway configuration would have been different if the public consultation and the environmental impact assessment had been carried out correctly and it did not follow from the applicants’ submissions in their constitutional complaint that the considerations on which the Federal Administrative Court had based its application of Article 46 of the Code of Administrative Procedure were incorrect. They had not substantiated their assertion that the outcome of the planning decision would have been more favourable to them if the parts of the procedure which had been flawed had been carried out correctly. 41 .     The Federal Constitutional Court criticised the Federal Administrative Court for not having properly addressed the applicants’ argument that they had been led to expect the actual flight paths to correspond to the plans on display during the public consultation, even though that had been unlikely from the start. It considered that the applicants could legitimately have assumed that the actual flight paths would correspond to the plans on display, given that the planning authority had coordinated the projected routes with DFS and that the facts which had given rise to doubts as to the feasibility of the projected flight paths – that is to say, the critical view expressed by DFS as early as 1998, the planning authority’s decision to remain with the initial plan, and the fact that the international legal framework would prevent simultaneous independent departures given the distance between the runways – had not been disclosed. The material put on display during the public consultation process had therefore not enabled the applicants to assess the likelihood that they would be affected by the airport. However, this did not mean the court should accept the applicants’ constitutional complaint. It was clearly foreseeable that the applicants would not be successful if the case were remitted to the Federal Administrative Court, as that court had found that other, structurally similar, procedural errors had not influenced the outcome of the planning approval procedure and found that those errors could not have led to the revocation of the planning decision, given the terms of Article 46 of the Code of Administrative Procedure (on inconsequential errors). There was every indication that the Federal Administrative Court would arrive at the same conclusion again with respect to the alleged procedural error at issue. In fact, the planning authority had respected the function of public consultation to a large extent. There was ample reason to assume that the applicants’ arguments would not have had an impact on the outcome of the proceedings, since the effects on the applicants were qualitatively and quantitatively similar to those considered with respect to other plaintiffs and the applicants, in any event, had not asserted otherwise. 42 .     The Federal Constitutional Court found, moreover, that the Federal Administrative Court’s findings as to the substantive legality of the planning decision were in conformity with constitutional law, and notably that the Federal Administrative Court’s finding that the outline plan had been adequate for an estimation of the noise impact of simultaneous independent departures and therefore for the purposes of choosing the appropriate site for the airport and approving its development at the Schönefeld site. Constitutional law did not require the Federal Administrative Court to find that the planning authority should have prepared plans which were more specific than the outline plan. There was no requirement that the plan on which the choice of site for the airport was based should reflect the noise impact on specific individuals, given that the precise flight paths were not determined in the planning decision but at a later stage. The Federal Constitutional Court added that the Federal Administrative Court had complied with the constitutional requirement to review the planning authority’s balancing exercise and to amend certain elements; it had not replaced the planning authority’s balancing exercise with its own. In particular, while the planning authority had focused on straight flight paths, it was evident that it had at all times considered it possible that other flight paths would eventually be set, as illustrated, for example, by the explicit statement in the planning decision that the flight paths would be set by the BAF shortly before the airport became operational; by the fact that the planning authority had indicated that it might change the designation of the protected areas if the actual flight paths differed from those projected (see paragraphs 15 and 16 above); and that the overall plan for the airport would remain valid in such a scenario. The Federal Administrative Court had regarded the authority’s plan as being based on projected flight paths and as allowing for the comparison of the noise impact on different areas. It had merely carried out its own assessment for the purposes of reviewing the authority’s balancing of interests when it determined that the nature and extent of the noise impact from diverging flight paths did not differ “significantly” from those on which the planning authority had based its balancing exercise. RELEVANT LEGAL FRAMEWORK AND PRACTICE    Domestic law and practice      The Basic Law 43 .     The relevant provisions of the Basic Law are worded as follows: Article 14 (Property – Inheritance – Expropriation) “(1)     Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by laws. ...” Article 19 (Restriction of basic rights – Legal remedies) “(4)     Should any person’s rights be violated by public authority, he or she may have recourse to the courts. If no other jurisdiction has been established, recourse shall be to the ordinary courts. The second sentence of paragraph (2) of Article 10 shall not be affected by this paragraph.”      Civil aviation, air traffic and aircraft noise    Civil Aviation Act 44 .     Section