OVG Schleswig Declares Amendment of Regional Plan 2012 Designating Areas for Onshore Wind Power Partly Invalid

Amendments of the Regional Plan 2012 for the State of Schleswig-Holstein in Northern Germany are invalid regarding the planning areas I and III that designate areas suitable for onshore wind power, the Higher Administrative Court of Schleswig -Holstein (OVG Schleswig) ruled. The Court found the amendments flawed for procedural as well as material reasons.

1. Background Information

The aim of state planing was to concentrate wind power use in specifically defined areas so as to contain turbines that are perceived as not aesthetically pleasing by many in certain areas. On the one hand, law suits were filed against the amendments by operators of wind power plants who want to erect turbines in other areas, too. On the other hand, actions were brought by land owners and two municipalities against designated wind power area who feared for negative effects on their property by nearby wind power plants.

The legal basis for the disputed regional plan amendments is the state development plan 2010, which lays down the principles and objectives of regional planning with regard to wind power. According to the state development plan approximately 1.5% of the surface area of Schleswig-Holstein shall be classified as areas suitable for wind power (Eignungsgebiete für die Windenergienutzung).

The amendments of the regional plan have been prepared in a complex procedure since mid-2011, which involved the districts and municipalities and compared their wishes concerning wind power locations with areas identified by the state planning authorities as being suitable for wind power. In the end the state amended the plan once again without having a consultation before presenting it in December 2012.

2. Procedural Flaws

The amendments of the regional plan contained procedural flaws that in itself made them invalid, OVG Schleswig said in a press release without further specifying. As the judgement is not yet available one can only guess that the court might refer to the lack of a consultation in the last stages of the preparation of the regional plan.

3. Material Flaws

Besides, the regional plan for planning areas I and III was invalid for material reasons as serious errors of assessment (Abwägungsmängel) had occurred. Firstly, public and private interests had been weighed incorrectly because the state was unable to reach the objective of having wind power only in designated areas with the specifications (Festsetzungen) made in the plan. For the areas in which wind turbines shall not be allowed (Tabuzonen) a sufficient differentiation between hard and soft criteria was missing and regarding the soft criteria a sufficient weighing of interests (hinreichende Abwägung) was also lacking.

In addition, the fact that the state planning authorities complied with negative votes of municipalities regarding suitable wind power areas made the amendments of the plan invalid, OVG Schleswig held. An exclusion of areas just because of a decision by a municipality or a citizen survey was not a proper weighing of interests in the sense of the legal provisions for regional planning. As a result many areas were designated as areas “with certain reservations” while areas that would have qualified without problem were not designated at all.

4. General Remark

The case demonstrates again that many projects of the German Energiewende (transition towards a renewable energy supply) face opposition and are subject to long-lasting law suits. Besides, the case shows that it is hard for the authorities to please all parties, and to stay within the legal framework.

Source: OVG Schleswig-Holstein

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