Bavarian Government Adopts Draft Bill for Minimum Distances of Wind Power Plants to Residential Housing

The Bavarian government has adopted a draft bill regulating minimum distances of wind power plants to residential housing. Bavaria is thus the first federal state that makes use of a draft bill the German government adopted together with the bill on a reform of the Renewable Energy Sources Act (EEG). The bill amending the Federal Building Code allows the federal states to include minimum distances in the state building laws (cf. new Section 249 no. 3 BauGB).

According to Bavaria’s Minister for Building Joachim Herrmann, the minimum distance of wind power plants to residential housing shall generally be ten times the total height of the wind power plant. Municipalities shall however be able to stipulate exceptions of the general rule in municipal zoning plans. Investor confidence shall be protected for wind power plants for which applications for licensing pursuant to building or emission laws have been fully submitted.

Pursuant to the Federal Building Code (Baugesetzbuch – BauGB), building is not allowed in outskirt areas not regulated by a zoning plan (Außenbereich). Certain projects are, however, exempted by Section 35 para. 1 no. 5 BauGB under certain conditions. One group of projects are those that serve research, development or use of wind or hydro power. This privilege will be restricted by the proposed new  Section 249 para. 3 BauGB and future state law based on it, as minimum distances can be laid down in state laws to be promulgated by 31 December 2015.

The BauGB amendment shall enter into force on 1 August 2014 together with the EEG reform.

So far minimum distance requirements between wind power plants and residential housing have only been part of decrees in some federal states (for more information, please see first blog post below). However, under German law a decree is only binding for subordinate authorities of the issuing ministries. For the regional planning authorities, the municipalities and other authorities responsible for urban land use planing they only provide guidance and thus help to implement and interpret the respective legal provision in a uniform way.

Source: Bavarian Government; Federal Ministry for the Environment, Nature Conservation, Building and Nuclear Safety (draft bill amending the Federal Building Code)

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