Deals & Cases

General Civil Disputes 2019-10-04
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DR & AJU Successfully Obtains a Court Decision Dismissing an Application for Provisional Disposition That Prohibits the Construction of Wind Turbines Near an Airfield

A creditor filed an application for provisional disposition to prohibit the construction of wind turbines near an airfield owned by the creditor. The creditor argued that the wind turbines penetrated the obstacle limitation surface (altitude limitation) and that this put the safety of flights to and from the airfield at risk and made it impossible to use the airfield for its original purpose. The application was made against the project implementer and the constructor of the wind turbines and was made based on the right to claim for removal of disturbance as the creditor’s right to be preserved.

DR & AJU represented the constructor of the wind turbines and argued that, even if aeronautical review related to flight safety showed that the wind turbines were not compliant with obstacle limitation surface requirements which is a public limitation set forth in the Airport Facilities Act, this did not in and of itself give the creditor any right against the persons related to the nearby land, and the ownership right of the nearby land should also be respected. DR & AJU emphasized that it should be carefully reviewed whether there is any risk to flight safety caused by the wind turbines and the degree of effect on the use of the airfield, and showed that there was no major risk to the safety of the airfield nor any restriction on the use of the airfield even if the flight safety review showed that the wind turbines penetrated the obstacle limitation surface. The creditor’s application for provisional disposition and subsequent appeal were both dismissed.

This case made it clear that even if a land is close to an airfield or airport and is subject to public limitations such as the obstacle limitation surface requirements, the right of the owner of the land should not be arbitrarily limited, and when constructing a structure that would penetrate the obstacle limitation surface, its impact on the nearby airfield or airport should be closely examined.