Airport land leases terminated – rectification claim sent to City

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Reference: HEL 2019-010374: Team Manager Corporate Plots §140 / 31.12.2019 Termination of land lease agreements (Malmi Airport area)
https://www.hel.fi/static/public/hela/vipaU511051003010VH4_Tiimipaallikko_yritystontit/Suomi/Paatos/2019/Kymp_2019-12-31_Maka_Make_140_Pk/19DF pdf

Subject: Appeal against termination of the land lease

INITIATOR OF RECTIFICATION CLAIM

Friends of Malmi Airport
Helsinki-Malmi Airport
00700 Helsinki

DECISION UNDER APPEAL

Decision of the team leader § 140 / 31.12.2019 in case HEL 2019-010374

STATEMENT OF RIGHT OF APPEAL

Friends of Malmi Airport is a registered community based in the city of Helsinki. 

The purpose of the association’s activities is to maintain the operations of Malmi Airport at its current location and to develop, promote and support the operations of the airport. The purpose of the association’s activities is also to nurture and protect the diverse nature and the built cultural heritage sites and milieus of Malmi area, to nurture their character and special features, and to promote their sustainable management and use. In addition, the purpose of the association is to document, store and transmit information related to the intangible and tangible cultural heritage of the area. The purpose of the activity is not to generate a profit or financial benefit for the members.

CLAIM

We demand the annulment of the team leader’s decision. 

REASONING

On 31 December 2019, the team manager for corporate plots decided to terminate 12 land lease agreements, as specified in the decision, to expire on 31 March 2020 or no later than three months after notification of the termination decision. The decision of the team leader specifies taking the area into the city’s own management and use as the reason for the decision.

The purpose of the leased plots in question is LL “airport area”, specified in the current city plan 5343 / 21.4.1964. The description of the city plan of 18 March 1963 identifies “airport” as the purpose of the entry LL.

According to our information, the municipality does not have any aviation or airport activities in accordance with the designated use of the area. The decision does not specify any other justification for the termination of the leases, so the justification is not real and must be considered contrary to good practice and unreasonable. There is nothing in the tasks assigned to the municipality by the Municipal Act that could be done in the area taking into account the current stage of city planning.

The procedure is completely different from the previous one, where the hangar of a state-owned company (Patria Ltd) was redeemed. Now private owners are being forced to dismantle their buildings, which is completely unreasonable and a blatant violation of the principle of equality and fairness.

A prohibition of endangerment is in effect in Malmi Airport area in accordance with section 6 of the Building Heritage Protection Act at least until the pending application to protect the area as built heritage has been resolved. The team leader requires in Annex 1 of the decision (dated 23 December 2019) that the tenant must demolish the buildings on the leased plot. The demolition work required by the termination violates the prohibition of endangerment, and the city cannot order the tenant to engage in such a manifestly illegal act. 

Tenants still need their plots that are required by the ongoing aviation operations. It is completely unreasonable and contrary to the general sense of justice of citizens to make aviation more difficult and to move up the planned future use of the area before the necessary zoning decisions have been initiated or finalized. The procedure is also contrary to section 6 of the Administrative Procedure Act, as according to it the actions of an authority must be proportionate to the aim pursued.

The decision’s violation of the Nature Conservation Act and its indirect effects on nature values 

An EIA procedure has been proposed for the area, as well as defining the areas where endangered species are found. In general, the establishment and closure of airports requires compliance with the EIA procedure. These things are pending, and any demolition work could cause harm to protected species. 

Sensitive bird species must not be harmed in a way defined in section 5 a of the Nature Conservation Act. The key point is that the demolition of structures before the town plans become final may cause damage to the species referred to in Article 5a (2) of the Nature Conservation Act, Article 4 (2) of the Bird Directive and listed in its Annex I. In view of the precautionary principle of environmental law, the decision must therefore be annulled.

Malmi Airport is the most important established habitat in Finland for the burren green (Calamia tridens) protected by European Union directive. The cessation of aerodrome operations would be a real detriment to the survival of the directive species. Sensitive insect species in the airport area must not be harmed in ways defined in section 5a of the Nature Conservation Act. The key issue is that no damage should be caused to the breeding and resting sites of a species listed in Article 5a (4) of the law, i.e. Annex IV of the Habitats Directive. In view of the precautionary principle of environmental law, the decision must be annulled.

Malmi Airport is a well-established habitat for bats protected by the European Union Directive. The cessation of aerodrome operations would be a real detriment to the survival of the directive species. Light-sensitive bat species in the airport area must not be harmed in ways defined in section 5a of the Nature Conservation Act. In view of the precautionary principle of environmental law, the decision must be annulled.

Subject to the Nature Conservation Act, it is not possible to engage in activities in the airport area that involve a significant amount of movement in the green areas of the airport in such a way that they could be damaged. The airport’s well-established management policies contribute to the preservation of these natural values. 

Unreasonableness of the decision for tenants

Malmi Airport’s operations have continued in 2020. Malmi Airfield Association has challenged the termination of its lease agreement and Traficom has stated that the landowner’s permission to continue operations has been granted in connection with the lease agreement at least until the matter is legally resolved.

The decision of the team leader has a significant indirect effect on general aviation in Finland and on securing the operating conditions for flight training at the national level. If the team leader’s decision is upheld, the decision must be substantiated to the extent required by section 45 of the Administrative Procedure Act also with regard to the continuation of leasing preconditions, so that the continuity of the fair structure of operations and of healthy and functioning competition and its basis, as required by section 30a of the Competition Act, can be ascertained both on national and local level.

According to a report prepared by the Ministry of Transport and Communications in 2014, Malmi’s operations cannot be located at other airports, even for recreational aviation. The study did not cover other general aviation, which according to the study accounts for 80-90% of Malmi’s operations. The Finnish Parliament has issued a statement that compensatory measures must be implemented and the civil aviation transferred to other airports before the decision to close down Malmi is implemented.

A decision that has a significant indirect effect on several pilot training companies and the competitive situation in the entire aviation industry cannot be made without comprehensive investigations without violating the investigation obligation of section 31 of the Administrative Procedure Act.

Implementation of legal protection and non-discrimination

Municipal decision-making is limited by the principle of equality in section 6 of the Constitution, as well as the requirement of equal treatment required by section 6 of the Administrative Procedure Act and the Prohibition of abuse of discretion. According to the case law of the Supreme Administrative Court, a municipality must act in a non-discriminatory and equitable manner when deciding on its property so that similar principles are followed in similar cases. Grounds to deviate from this must be factual and justified.

The termination of an existing land lease agreement by the municipality is an exceptional legal act. Such a decision must be fully reasoned in order to ensure the constitutional legal protection of the lessee and to establish that the decision is non-discriminatory. Pursuant to section 45 (1) of the Administrative Procedure Act, the decision must be substantiated and its reasoning must state which facts and explanations have affected the decision, mentioning the applied legal provisions. 

The present termination decision differs significantly from the procedure in the similar case of Patria Aviation Ltd (HEL 2017-002764). The procedure of deciding to buy a public owner’s hangar for EUR 200,000 and then obliging private owners to dissolve their property seriously violates the protection of property guaranteed by the Constitution and the principle of equality for both individuals and legal entities.

It should be noted that the lease of the airport area between the City of Helsinki and the State was originally valid for a fixed period until 2034. However, the parties have now agreed to purchase buildings in their own interest, trampling on the rights of private property owners. If the leases are terminated prematurely, redemption of all the buildings at a price level corresponding to that of Patria Aviation Ltd’s case would be the minimum requirement of a reasonable solution in such a situation. 

Protection of a party’ legal rights cannot be achieved by a decision which is unsubstantiated and whose non-discriminatory nature cannot be established. The team leader’s decision gives no reasoning and no response to the tenants’ replies sent in October 2019.

Breach of the principle of consultation 

The Authority has an obligation to consult the parties before taking a final decision.

In connection with the decision, statements have been requested from the tenants, but they have not been answered. No other actors in the region , who are more than slightly indirectly affected by the team leader’s decision, have been consulted in connection with the decision. The consultation has not been real and does not fulfill the Authority’s duty to consult.

Opinions have been sought in connection with the decision, but the principle of consultation, which includes the assessment and response to opinions expressed, has been completely disregarded, rendering the decision unlawful.