Bavarian Constitutional Court Hearing on Controversial 10H Minimum Distance Requirement for Wind Power Plants

On Tuesday, the Bavarian Constitutional Court heard the parties on the controversial 10h minimum distance requirement for wind power plants. Pursuant to the so called 10h-Regulation (10H-Regelung) contained in the revised Bavarian Building Code, wind power plants have to maintain a minimum distance from residential housing of ten times the total height of the wind power plant. 

The Bavarian Constitutional Court held a hearing on several cases brought against the controversial 10H-Regulation submitted when the law was introduced in 2014.

The plaintiffs argued that the minimum distance requirement for building new wind power plants in Bavarian state law is not in line with the underlying provisions in the revised Federal Building Code and disproportionate. Current wind power plants reach a total height of about 200 meters, resulting in a minimum distance of 2,000 meters. This would substantially reduce available areas for wind power plants in Bavaria on only 0.05% of Bavaria. Taking further into account that this area is only available in the abstract, and that is not always sufficiently exposed to wind, or that other public concerns exist against using this area for wind power plants, only about 0.01% of the state area would remain. This nearly total “de-privileging” of wind power plants is said to not be covered by the exemption in Section 249(3) of the Federal Building Code. Therefore, the Bavarian State Parliament overstretched its legislative scope (Gesetzgebungsspielraum) as the Bavarian regulation de facto ignores the otherwise privileged treatment of wind power plants in the Federal Building Code, violating constitutional rights.

After the hearing, both parties were reported to be confident. Bavaria is represented by Prof. Dr. Martin Burgi. He argued that the legislator has to bear in mind all interests – not only those of wind investors and project developers. “Despite the 10H-regulation there is still theoretically space for at least 200 wind power plants in Bavaria”, Martin Burgi reportedly said. How many of these wind power plants effectively are suitable to be built e.g. due to other restrictions like wind strength and nature protection areas would not constitute a constitutionally relevant question.

Based on press reports, the presiding judge reportedly said that a glaring and obvious breach of proportionality and authorization limits would be required for the Bavarian law to be void.

A decision of the court is expected for 9 May 2016.

Source: Die Welt, BR

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