The Bavarian Constitutional Court today decided that the controversial 10h minimum distance requirement for wind power plants in Bavaria is in line with the constitution. 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 plaintiffs had argued that the minimum distance requirement for constructing 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. The 10h minimum requirement would therefore substantially reduce available areas for wind power plants in Bavaria to 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 was argued not to be covered by the exemption in Section 249(3) of the Federal Building Code. Therefore, the Bavarian State Parliament overstretched its legislative scope (Gesetzgebungsspielraum). The Bavarian would regulation de facto ignore the otherwise privileged treatment of wind power plants in the Federal Building Code, violating constitutional rights.
The Bavarian Constitutional Court held that the Bavarian provisions did not violate the rule of law principle (Rechtsstaatsprinzip) in Art. 3(3)(1) Bavarian Constitution because of a violation of the separation of powers under the German constitution, the Basic Law. The 10h rule respected the opening clause recently introduced to allow the Länder (federal states) to set minimum distances. Assuming a maximum height of 150m, meaning a minimum distance of 1,500m, this would leave 4% of the state territory for wind power plants. The fact that 200m plants may be common does not mean that smaller wind power plants can be left out of the calculation, even if they are less profitable. Even at 200m height, that would leave 1.7% of the territory for new plants, plus areas covered by a grandfathering clause.
The 10h minimum distance rule also did not unlawfully restrict the constitutionally protected use of property. The Bavarian constitution did not protect the interest of land owners for the most profitable use of their property.
The court did, however, strike down one element of the Bavarian 10h package that requested municipalities to seek agreement from neighbouring municipalities if they intended to set a lower minimum distance. The opening clause in the Federal Building Code for deviating state law provisions did not cover this additional requirement.
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