Legal Action Against Bavarian 10H Minimum Distance Regulation for Wind Power

The German Wind Energy Association (BWE) has announced that its Bavarian section officially supports an lawsuit by Pro Windkraft against two recent minimum distant rules in the Bavarian Building Regulations (Bayerische Bauordnung). The articles challenged prescribe a minimum distance of wind power plants to residential housing of ten times the total height of the wind power plant. BWE also criticised the outcome of an energy dialogue organised by the Bavarian government which BWE thinks is likely to hinder further wind power growth, as Bavaria is questioning the planned expansion of the German transmission grids.

1. Opening Clause in Section 249 (3) BauGB and Bavarian “10H Law”

In the course of the reform of the Renewable Energy Sources Act (EEG) that became effective on 1 August 2014 (EEG 2014), the government also acted upon a coalition agreement and amended Section 249 Federal Building Code (BauGB) by introducing a new rule which allows the federal states to restrict the privileged status of wind power otherwie laid down in Section 35 para. 1 no. 5 BauGB.

Section 35 BauGB allows building in outskirt areas not regulated by a zoning plan (Außenbereich) only in a limited number of cases. According to Section 35 para. 1 no. 5 BauGB one group of projects that may receive a building permit are those that serve research, development or the use of wind or hydro power. This privileged status my now be restricted pursuant to the new opening clause in Section 249 para. 3 BauGB.

The state of Bavaria made use of the opening clause. The amendment of the Bavarian Building Regulations (Bayerische Bauordnung – BayBO) entered into force on 21 November 2014. Due to the fact that the new Art. 82 para. 1 BayBO prescribes a minimum distance of wind power plants to residential housing of ten times the total height of the wind power plant, the amendment has become known as the “10H law”.

2. Legal Action Against Bavarian Minimum Distance Regulation

Former member of Parliament and Green party member Hans-Josef Fell and Patrick Friedl, member of the city council of Würzburg and also a Green party member, brought legal action against Art. 82 paras. 1 to 5 and Art. 83 para. 1 BayBO before the Bavarian Constitutional Court. Their action is supported by the group Pro Windkraft, a pro wind power group that formed to finance and support legal action against “the unlawful wind power policy of the government”. The Bavarian Section of BWE now also declared its support.

Plaintiffs allege that the 10H law violates various articles of the Bavarian constitution (BV), in particular

  • Art. 103 BV, right to property
  • Art. 101 BV, general freedom of action (within the laws and the moral law)
  • Art. 3 para. 1, sent. 1 BV, rule of law
  • Art. 11 para. 2 BV, right to local self-government
  • Art. 118 BV, principle of equality

Main arguments are

  • that the right to property and the general freedom of action were unduly restricted and
  • the general privilege for wind power in outskirt areas pursuant to Section 35 para. 1 no. 5 BauGB was hollowed out and
  • use of the opening clause was not properly made.

Although plaintiffs Fell and Friedl are not personally affected by the 10H law, they were able to file a lawsuit with the Bavarian Constitutional Court as the statutes allow for an actio popularis (Popularklage) with which anybody can bring legal action alleging that a constitutional right has been infringed (cf. Art. 55 para. 1 VfGHG.

3. Outcome of Bavarian Energy Dialogue, Bavarian Stance on Grid Expansion and BWE Criticism

BWE has also criticised the outcome of the Bavarian Energy Dialogue, saying it threatened grid expansion and might lead to subsidies for fossil power plants.

The Bavarian energy dialogue was a project initiated by the Conservative Bavarian government to improve acceptance of the German energy transition towards a renewable energy supply and gauge the mood of the public by discussing pressing topics like energy efficiency, security of supply, renewable energies and storage technologies.

There is a high demand for electricity in Bavaria due to numerous enterprises. At the same time Bavaria’s nuclear power capacity will be phased out by 2022 (for the exact closure dates of the nuclear power plants Grafenrheinfeld, Grundremmingen B and C and Isar 2, please see here).

To supply Germany with sufficient (renewable) electricity, mainly wind power from Northern Germany, after the closure of the nuclear power plants, the Federal Requirement Plan for Transmission Networks foresees three main HVDC power line corridors plus additional lines that mainly link northern and southern Germany (for more information, please see here).

When opposition against new power lines arose, Bavaria started the Energy Dialogue. A summary of the results can be found here. Inter alia the Bavarian government demands “to carry out grid expansion only to the degree necessary, in particular to close the supply gap (25 TWh after the construction of the Thuringian Power Bridge minus power generated by necessary power plant capacity, e.g. (CHP)”. Besides the government calls for incentives for gas power plants.

With regard to the new HVDC power line corridors, Bavarian Energy Minister Ilse Aigner said she did not see the need for two new corridors to Bavaria, “2 minus X” was enough. How big the “X” was depended on negotiations with the government in Berlin.

Bavaria’s opposition to new power lines contained in the law on the Federal Requirement Plan to which Bavaria also consented in the Federal Council has met with criticism. Reportedly Vice-Cancellor and Energy Minister Sigmar Gabriel (Social Democrats) called on Bavaria’s conservative premier Horst Seehofer (CSU) to back the two power line corridors to Bavaria by the end of January or face higher electricity prices in Bavaria. Lower Saxony’s premier Stephan Weil (SPD) called on Chancellor Angela Merkel (CDU) to decide the matter, Frankfurter Allgemeine Zeitung said today.

Source: BWE; Pro Windkraft

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