Airport Noise as Public Bads: Comparative Remarks on Legal Challenges in Resolving the Neighbor Conflict Between the Airport and Landowners

Incompatible uses of land create neighbor conflicts connected with the notions of civil law immissions (non-trespassory invasions) or common law nuisance. These traditional instruments of resolving the neighbor conflict have their limitations when pollution (such as noise pollution produced by aviation) interferes with the use and enjoyment of land that affects numerous landowners. Lawmakers seek to resolve the neighbor conflict with public intervention in such circumstances. Instead of relying on the market, the state allocates entitlements, indicates how parties must behave, and prescribes the conditions under which lawmakers should conclude an agreement. Interestingly, although the nuisance caused by airport noise has the same characteristics worldwide, no uniform solutions are applied. Existing literature regarding airport externalities concentrates on land values, land use, measuring noise, and the influence of noise on human health. Little has been written on legal solutions that seek to balance opposing sides’ interests and indemnify the aggrieved landowners. This Article aims to provide a comparative overview of how lawmakers seek to balance the interests of airports and homeowners in selected European jurisdictions, namely Germany, France, the Netherlands, and Poland. The analysis is based on Richard Posner’s positive analysis, which allows for a systematic description and explanation of the legal system. Understanding the regulating behavior and its effect on the regulated behavior is important when considering possible amendments and developments of the law. The Article begins with assessing the features of a neighbor conflict, analyzes potential property or liability solutions, and then focuses on the public intervention employed to resolve the conflict. A comparison of the various solutions and their underlying assumptions will allow assessing to what extent they are suitable to achieve the objective of conflict resolution and balancing of interests. This Article identifies inconsistencies in policies as compared to the applied economic and legal instruments to indicate good practices in resolving this particular neighbor conflict and provide a basis for future normative analyses