When they are installed, photovoltaic systems must comply with all relevant regulations of public building law. Public building law is divided into building planning law and building regulations law.
Building planning law serves to determine the legal quality of the land and is essentially regulated by the federal government in the Federal Building Code (BauGB). The central element of building planning law is urban land-use planning.
Building regulations, on the other hand, regulate the regulatory requirements for the specific building structure and are thus intended to prevent disfigurement and hazards and maintain social and ecological standards.
In turn, building regulation law is divided into substantive building regulation law, which defines the substantive requirements for the construction and design of individual buildings (substantive building regulation law) and formal building regulation law, which regulates the need for approval of building projects, building supervision and the related organisational and procedural regulations.
Building regulations are governed by the respective state building regulations, which in turn are modelled on the "Model Building Regulations for the Federal States including the State of Berlin" adopted by the Conference of Building Ministers.
According to the building regulations of the federal states, photovoltaic systems are to be assessed as "structural installations", as they are installations connected to the ground and made of building products. Even the fact that the connection to the ground is only indirect through the building does not prevent such an assessment.
In terms of formal law, building structures generally require planning permission in accordance with the respective state building regulations (see e.g. Section 63 (1) BauONW).
Under substantive law, buildings must comply with the provisions of building planning law, building regulations law and ancillary building law (e.g. monument protection law).
1) Requirement for authorisation
The procedure for the formal authorisation requirement in the respective federal states can be divided into four categories:
- Simple exemption from authorisation
- Exemption, notification and disclosure procedure
- Simplified building authorisation procedure
- "Normal" building authorisation procedure
a.) Simple exemption from authorisation
Each federal state has included such an exemption from authorisation in its respective state building regulations, under which the majority of photovoltaic systems installed in Germany fall.
If the installation "simply" does not require authorisation, the building owner does not have to submit a building application or notify an authority. The responsibility for complying with the statutory provisions then rests with the building owner.
When the term "roof and external wall surfaces" is used in connection with these regulations, this may mean that only those solar energy systems that are embedded in the roof and external wall surfaces or are "adjacent" to the roof and external wall surfaces are exempt from the procedure.
b.) Exemption, notification or disclosure procedure
If the system erected on a building does not require authorisation, the procedure to be followed is based on the regulations that must be complied with when making structural changes to the building.
This means that a procedure must be followed for each change:
- the exemption procedure if the project does not require authorisation.
- the notification procedure or notification procedure if the project is subject to notification.
c.) Simplified building authorisation procedure
In the simplified approval procedure, however, the building supervisory authority only checks a section of particularly important requirements, such as the permissibility of the project under building planning law, its compliance with local building regulations (e.g. a design statute), requested deviations from building (regulatory) law or other requirements under public law if the building permit replaces another permit or this other permit no longer applies due to the building permit (e.g. monument protection law).
d.) "Normal" building authorisation procedure
If none of the above alternatives apply, the "normal" planning permission procedure must be followed. In principle, these are PV systems that are to be planned and built in outdoor areas.
2) Substantive building law
As already mentioned above, solar installations must fulfil not only the formal but also the material requirements of public building law. In addition to building planning and building regulations law, ancillary building law, in particular monument protection law, is also relevant.
a.) Building planning law
German building planning law divides the area of a municipality into three areas: the outer area (Section 35 BauGB), the area covered by development plans (Section 30 (1) BauGB) and the inner area (contiguous neighbourhoods without a development plan) (Section 34 BauGB).
aa.) Qualified development plan (Section 30 (1) BauGB)
A project within the scope of a qualified development plan is permitted if it does not contradict the provisions of the qualified development plan and the development is secured.
The development plans determined by the municipality generally specify an area type (e.g. pure or general residential area, core area, commercial area, etc.). If a business has to be registered due to the output of the PV system and the project is to be realised in a purely residential area, this can lead to problems, as businesses cannot be approved in purely residential areas.
In addition, the other provisions of the development plan must be observed.
bb.) Inner area (§ 34 BauGB)
For projects in inner city areas without a development plan, the project must "fit in" with the existing character of the neighbourhood in terms of the type and extent of building use, the construction method and the area of land to be built on.
The enforcement of a project in this area could therefore become problematic if, in the opinion of the authorities, it does not "fit in" with the existing character of the neighbourhood.
cc.) Outdoor area (§ 35 BauGB)
Although the outdoor area is to be kept free of development in principle, projects are permitted there as subordinate installations to privileged projects in accordance with Section 35 (1) No. 1 BauGB or as independent privileged installations in accordance with Section 35 (1) No. 5 BauGB if they do not conflict with public interests and adequate development is ensured.
PV systems do not generally fall under the regulatory catalogue of § 35 Para. 1 BauGB (not even by extension, VG Minden, judgement of 25.06.2002 - 1 K 1350/01).
As so-called "other facilities" within the meaning of Section 35 (2) BauGB, they are therefore subject to strict authorisation requirements.
b.) Building regulations law
With regard to building regulations law in relation to PV systems, the prohibition of defacement, which is regulated in all state building regulations, plays a key role.
According to the prohibition of disfigurement, all buildings should be harmonised with their surroundings in such a way that they do not disfigure the streetscape, townscape or landscape and do not impair future design. The shape, scale, colour and relationship of the building masses and components to each other play a role in this.
With regard to defacement, a basic distinction is made between environmental defacement and property-related defacement.
A building disfigures its surroundings if the contrast between it and its surroundings is perceived by the so-called educated average observer as burdensome and unpleasant.
In other words, disfigurement is deemed to exist if the streetscape, townscape or landscape is not only ugly as a result of the construction, but also offends the aesthetic perception of the viewer who is open to aesthetic impressions.
Accordingly, mere disturbance of the surroundings is not sufficient. Rather, an ugly condition that offends aesthetic sensibilities only exists if the disturbance is significant, i.e. substantial. The construction must therefore create a condition that is perceived as grossly inappropriate, arouses a feeling of displeasure and provokes criticism and the desire for remedial action.
A building appears defaced if a viewer who is open to aesthetic impressions, the so-called educated average viewer, feels that his aesthetic perception is not merely impaired but violated by the sight of it.
It is therefore not enough to disturb the architectural harmony, i.e. any unsightliness, but what is necessary for defacement is a condition that is perceived by the open-minded observer as grossly inappropriate, arouses a feeling of displeasure and
criticism and the desire for a remedy.
It is clear from these definitions that the assessment is very subjective and therefore subject to differences of opinion and disputes.
Another relevant area of building regulations law in connection with PV systems is the distance zones.
Clearance areas are areas that must be kept clear of buildings above ground if buildings are not built directly next to each other. The clearance areas serve to protect buildings against fire. They are also intended to ensure adequate lighting, ventilation and sunlight on the properties.
PV systems can generally have an influence on the calculation of the clearance areas of the buildings associated with them, but they can also make clearance areas necessary themselves.
c.) Ancillary building law
In the context of ancillary building law, monument protection law is particularly relevant.
Monument protection is subject to state legislation, which is why each federal state has its own monument protection law with different provisions in some cases. In NRW, monument protection is governed by the "Law on the Protection and Care of Monuments in the State of North Rhine-Westphalia" (Denkmalschutzgesetz - DSchG) of 11 March 1980.
Many court decisions regarding PV systems relate to monument protection law.
If the project is to be realised on or next to a listed building, a listed building permit may therefore be required.
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
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