OVG Münster: Commercial Use of Rooftops for PV Systems May Need Separate Construction Permit

The Higher Administrative Court of North Rhine-Westphalia in Münster (OVG Münster) decided that an additional construction permit may be necessary for the commercial use of rooftops for solar installations. 

The Construction Code (Bauordnung) for North Rhine-Westphalia in principle exempts rooftop solar installation from the normal construction permit requirement. However, OVG Münster held that the exemption does not cover all installations of solar systems on a roof.

In the case before the court, a PV system was installed on the roof of an indoor riding arena. The riding arena was considered to be a privileged agricultural project that is permissible in undeveloped outskirt areas. The farmer who owned the riding arena had rented out his roof to a third party who installed the PV system. Power from the PV system was not used on the farm but sold to the regional distribution system operator.

OVG Münster held that the commercial use of the roof for a PV system was not covered by the exemption from the permitting requirement for PV systems. The commercial use of the riding hall for a PV system constituted a change of use of the existing building from the privileged agricultural use for riding purposes to another form of commercial use. This change of use would require a normal construction permit. The permit exemption for solar systems only applies if the newly installed system does not change the otherwise permitted use of the building.

The decision of OVG Münster is in line with the Court’s previous decisions on permitting requirements of mobile telephone base stations.

The owner of the PV system had to stop generating power and now has to apply for a construction permit.

Source: OVG Münster, decision of 20 September 2010, ref. no. 7 B 985/10

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