BDEW and Others Against Proposed Legislation Enabling Länder to Enact Minimum Distances for Wind Power Plants

In a joint statement the Federal Association of the Energy and Water Industry (BDEW), the German Wind Energy Association (BWE) and the German Engineering Federation (VDMA) have spoken out against a bill amending the Federal Building Code which shall give the federal states the right to include minimum distances for wind power plants to residential housing. The Federal Building Code (Baugesetzbuch – BauGB) amendment shall enter into force on 1 August 2014 together with the reform of the Renewable Energy Sources Act (EEG reform).

Pursuant to the Federal Building Code, in principle 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.

BDEW, BWE und VDMA Power Systems call the proposed legislation counterproductive in view of the national targets for renewable growth, which foresee annual growth of up to 2,500 MW for onshore wind power (for more information on the new targets included in the EEG amendment, please see here). The associations expect a rising number of conflicts, which they fear would do damage to wind power growth and public acceptance of wind power plants. “The new provision would lead to paralyzing debates. Regional conditions and specifics can be well cared for by the municipalities with the existing tools like land use plans (Flächennutzungsplan) and regional plans. We believe there is a danger of negative impacts on the energy transition (Energiewende). Hence, we reject the proposed legislation”, the associations said.

The first federal state that wanted to make use of a draft bill amending BauGB is Bavaria. In April the Bavarian government adopted a draft bill regulating minimum distances of wind power plants to residential housing (please see first link below). 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.

Source: BDEW

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