Judgements on wind turbines
1) Judgement of 16 September 1999, OVG Saxony-Anhalt, Ref.: A 2 S 88/98
Content: Nature and landscape concerns pursuant to Section 35 para. 3 sentence 2 no. 5 BauGB can also exclude a privileged project from a specific location despite general planning. The difference to "other" projects under Section 35 (2) BauGB lies solely in the weight of the respective concern (on the one hand "impairment", on the other hand "opposition").
2) Judgement of 17 August 1999, Administrative Court Hanover, Ref.: 4 B 2988/99
Content: Installations may even be permitted if they are located in the vicinity of purely residential areas. However, this depends on the individual case: Persistent, disruptive humming sounds, mirror effects etc. can lead to court decisions against the system.
3) Judgement of 20 April 2000, VGH Baden-Württemberg, Ref.: 8 S 318/00:
Content: The erection of four wind turbines, which form a wind farm, is an unavoidable and uncompensatable intervention in nature and the landscape. The balancing of the interests in favour of the project on the one hand and the interests of nature and landscape protection on the other hand, which are affected by the lack of compensation, is a "genuine" balancing of the authority, which is not fully subject to judicial review. The result of this balancing is also binding for the application of Section 35 (1) and (3) BauGB.
4) Judgement of 13 December 2001, BVerwG, Ref.: 4 C 3/01:
Content: In the case of outdoor area projects, the assessment under building planning law in accordance with Section 35 BauGB and the assessment under nature conservation law in accordance with Sections 10 et seq. NatSchG must be separated and must be carried out independently of each other. It is also possible that an authorised project that is privileged under building planning law in accordance with Section 35 (1) BauGB may fail due to the impact regulation under nature conservation law or at least only be permitted subject to conditions. In this respect, an independent assessment must be made as to whether the landscape is significantly impaired in accordance with Section 10 of the Nature Conservation Act (and therefore an encroachment exists) and whether an encroachment can nevertheless be authorised in accordance with Section 11 of the Nature Conservation Act.
5) Judgement of 27 January 2005, BVerwG, Ref.: 4 C 5. 04; OVG Koblenz
Content: The possibility opened up by the legislator under the conditions specified in § 12 Para. 2 ROG to prohibit the granting of planning permission in order to safeguard a spatial planning objective currently being developed does not affect the authority of the building supervisory authority to refuse planning permission on the grounds that the construction of the wind turbine would be opposed by a spatial planning objective currently being developed as an unnamed public interest within the meaning of § 35 Para. 3 Sentence 1 BauGB.
6) Judgement of 06.03.2002, OVG Koblenz, Ref.: 8 C 11470/01
Content: Even in the case of a development plan that designates a special area for wind turbines, the compensation of expected interventions is a necessary part of the consideration (Section 1a BauGB). It must be ensured at the time of the resolution on the bylaws that the specified measures can actually and legally be implemented by the time the plan is realised at the latest.
7) Judgement of 16 October 2002, VGH Mannheim, Ref.: 8 S 737/02:
Content: As the rotating movement of planned wind turbines represents a different quality of impairment, prior pollution from a television transmitter is not decisive when assessing the environmental impact. Facilities for recreation, sporting activities and diversion (e.g. hikers' hostels, ski huts, ski lifts, small ski jumps) are not to be assessed as pre-existing pollution, as people seeking recreation expect to find such facilities in areas of the landscape that are important for recreation.
8.) Judgement of 16 October 2002, VGH Mannheim, Ref.: 8 S 737/02:
Content: Visual impact on a nature reserve 1.5 km away can also be used to refuse a licence.
9) Judgement of 31 July 2001, VG Regensburg, Ref.: RN 6 K 00.1291
Content: Visual impairment caused by the erection and operation of wind turbines in the Bavarian Forest. The clearly visible project would have a considerable negative impact on the previously unimpaired landscape. The Bavarian Forest in particular has a large number of areas in which the surroundings are characterised by gently rising mountain and hill ranges of rare beauty and remarkable panoramic views." The planned site is an area from which and to which views can be enjoyed in a reassuring manner, even from greater distances.
The purpose of the LSG ordinance is to protect the landscape typical of the Bavarian Forest, which exists in the immediate and wider surroundings of the proposed site. It should also be taken into account that technical installations for the utilisation of wind power on elevated sites in the Bavarian Forest are not predetermined in terms of cultural history.
10.) Judgement of 25 March 1996, VGH Munich, Ref.: 14 B 94.119:
Content: The landscape of the Bavarian Forest essentially comprises valleys and slopes and only relatively few high elevations, which, however, significantly characterise the landscape. The "face" of this landscape could therefore be permanently changed by a few wind turbines erected on hilltops. The proximity would have a visually overwhelming effect (even with a "mere" 41.5 m high turbine).
11.) Judgement of 16 October 2002, VGH Mannheim, Ref.: 8 S 737/02:
Content: For the question to be examined under Section 35 BauGB as to whether the landscape has been disfigured, it is fundamentally irrelevant whether the planned site is located in a nature reserve or landscape conservation area, as a landscape that is not specially protected under nature conservation law can also be sensitive to aesthetic impairments.
12.) Judgement of 14.09.2000, OVG Lüneburg, Ref.: 1 K 5414/988:
Content: In order not to impair the landscape too much, minimum distances must be maintained between wind farms. A minimum distance of 5 km (as specified in the Lower Saxony Ministry's decree) is a reasonable guideline value for the coastal region with its wide visibility.
13) Judgement of 13 December 2000, VG Dessau, Ref.: 1 A 467/99 DE:
Content: The distance recommendations in the guideline for site planning and assessment of wind turbines issued by the Ministry for Regional Planning, Agriculture and the Environment of Saxony-Anhalt on 29 April 1996, Mbl. LSA p.1423 (standard distance from protected areas: four times the hub height) provide a reliable reference point for assessing the long-distance effects of wind turbines.
14) Judgement of 14 September 2000, OVG Lüneburg, Ref.: 1 L 2153/99:
Content: If there are indications of the existence of a "de facto" bird sanctuary, the municipality must examine this when drawing up a land-use plan with the designation of sites for wind turbines and take it into account when weighing up the options in accordance with Section 1 (6) BauGB (with interesting comments on the effects of wind turbines on resting birds).
15) Judgement of 18 May 2000, OVG Bautzen, Ref.: 1 B 29/98:
Content: If the land use plan contains the designation "area for agriculture", this does not prevent the erection of a wind turbine.
16.) Judgement of 30 November 2001, OVG Münster, Ref.: 7 A 4857/00:
Content: Building planning law does not result in a blanket favouring of wind energy over other interests worthy of protection (e.g. tourism, nature and landscape conservation). In order to determine and define priority zones, the municipality requires a coherent planning concept that is sufficiently motivated by urban development considerations. However, this can be determined on the basis of global and generalised criteria for the unsuitability of the areas covered by the exclusion effect, so that certain "taboo areas" (e.g. areas important for local recreation) can be excluded from further examination for reasons of nature conservation and landscape management, including the recreational function of the landscape.
17) Judgement of 14 May 2003, OVG Koblenz, Ref.: 8 A 10569/02.OVG
Content: Judgement on the requirements for consideration when drawing up a land use plan that designates areas for wind energy in accordance with Section 35 (3) sentence 3 BauGB and excludes other areas from this use (prevention planning).
18) Judgement of 22 November 2000, VG Dessau, Ref.: 1 A 121/99DE:
Content: Five wind turbines with a hub height of 99 metres are spatially significant. They are therefore not permitted if suitability areas are defined as "spatial planning objectives" in a regional plan; it is not necessary for "priority areas" to be designated in order to achieve the exclusion effect.
19.) Judgement of 09.11.2000, VG Weimar, Ref.: 1 K 654/00:
Content: A single wind turbine is generally spatially significant if it is over 100 metres high and is to be erected in the lowlands or otherwise on an ascending slope or on a hilltop.
20.) Judgement of 22 May 2002, VGH Munich, Ref.: 26 B 01.2234:
Content: A single turbine in the Lake Constance hinterland with a hub height of 74.5 metres and a rotor diameter of 50.5 metres is spatially significant. If the regional planning authority designates certain sub-areas as "exclusion areas" and "priority areas", the remaining areas are to be regarded as "suitability areas" even without explicit designation.
21) Judgement of 19 January 2001, OVG Greifswald, Ref.: 4 K 9/99:
Content: Practically all modern wind turbines are spatially significant. In order for a strict target commitment to the regional plan to materialise, a specialist planning-like intensity of consideration is required.
22.) Judgement of 20 February 2003, OVG Koblenz, Ref.: 1 A 11406/01:
Content: The construction of wind turbines does not conflict with the representation of the land use plan of the association municipality or the designation of areas for wind energy utilisation by the regional development plan M-W "Site area for wind energy utilisation" within the meaning of Section 35 (3) sentence 3 BauGB. The project also does not impair any public interests within the meaning of Section 35 (3) sentence 1 BauGB.
23.) Judgement of 06.03.2002, OVG Koblenz, Ref.: 8 C 11131/01:
Content: A municipality can only file an admissible application for a judicial review of a development plan of a neighbouring municipality containing a special area for wind energy use if it can assert a violation of its planning sovereignty, its property or a regional planning objective serving its protection.
24.) Judgement of 06.03.2002, OVG Koblenz, Ref.: 8 C 11470/01:
Content: The right of owners of properties in neighbouring municipalities to file an application in proceedings for the review of standards against development plans can also result from the visual impact of these plans.
25.) Judgement of 20 May 2010, Federal Administrative Court, Ref.: 4 C 7.09
Content: The Federal Administrative Court in Leipzig confirms the current land-use planning of the town of Karben, according to which wind turbines are only permitted at a site on which four turbines are already located and whose capacity has been exhausted. The exclusion of wind turbines in the remaining
The decision to allow the use of the outdoor area - and thus also on the building plots of the applicant, a company in the wind energy sector - is based on appropriate reasons, which the city may value more highly than the interests of third parties in the use of wind energy.
26.) Judgement of 21 April 2010, OVG Lower Saxony, Ref.: 12 LC 9/07
Content: If the planning municipality leaves the question of whether an area is a de facto bird sanctuary open, even though there are sufficient indications for such a classification, and alternatively justifies why it is not a de facto bird sanctuary,
had not designated this area as a priority area due to its avifaunistic value, there is no lack of consideration leading to the ineffectiveness of the land use plan.
The rectification of a land use plan within the meaning of Section 214 (4) BauGB requires that not only the error is rectified, but that the entire subsequent procedure is repeated. Successful rectification therefore requires (renewed) authorisation from the higher administrative authority in accordance with Section 6 (1) BauGB
and their publication in accordance with Section 6 (5) sentence 1 BauGB.
27.) Judgement of 15 September 2009, Federal Administrative Court, Ref.: 4 BN 25.09
Content: On 15 September 2009, the Federal Administrative Court clarified that a municipality may define so-called "soft taboo zones" on the basis of its own criteria, so that wind energy is given substantial space for concentration planning in accordance with Section 35 (3) sentence 3 BauGB as a result of the balancing of interests.
has to be.
28.) Judgement of 15.05.2009, OVG Lower Saxony, Ref.: 12 LC 55/07
Content: Outside of a concentration area, a deviation from the rule of Section 35 (3) sentence 3 BauGB can only be authorised if it does not call into question the planning concept of the municipality and the private interest in the use of wind energy at the intended location deserves priority in an overall assessment of the circumstances characterising the individual case.
29.) Judgement of 29 May 2009, Bavarian Administrative Court, Ref.: 22 B 08.1785
Content: A wind turbine can violate the "principle of consideration" set out in Section 35 para. 3 sentence 1 BauGB due to the rotational movement of the rotor that can be perceived from above. For this to be the case, however, it must have a visually oppressive effect according to the circumstances of the individual case (location of certain rooms or terraces in relation to the wind turbine, existing shielding by other buildings, topographical situation).
30.) Judgement of 13.12.2007, OVG NRW, Ref.: 8 A 2810/04
Content: The fauna-flora impact assessment ("FFH impact assessment") of a priority zone for wind power utilisation must already be examined in the procedure for drawing up an urban land-use plan if the planning can lead to significant impairment of a European bird sanctuary in its components relevant to the conservation objectives or the purpose of protection. It is not necessary for the priority zone to be located in the bird sanctuary; it is sufficient for the wind turbines to have an impact on the conservation objectives.
31.) Judgement of 28.01.2010, OVG Lower Saxony, Ref.: 12 KN 65/07
Content: The right to file an application for a judicial review against a regional planning objective laid down in a regional plan (here: Determination of priority locations and suitability areas for wind energy use) may (continue to) exist if the regional plan ceases to be in force during the judicial review proceedings. In addition, the applicant for a judicial review must have a legitimate interest in establishing that the standard was invalid.
32.) Judgement of 23.01.2008, Administrative Court Aachen, Ref.: 6 K 807/06
Content: Action against the planning permission to erect a wind turbine.
33.) Judgement of 17 April 2009, Münster Regional Court, Ref.: 011 O 167/08
Content: The plaintiff seeks damages from the defendant municipality for an alleged breach of official duty. The plaintiff is a wind energy company. The plaintiff constructs turnkey wind turbines, carries out planning and sells completed turbines to funds, among others. "A wind energy project planning company does not belong to the group of persons protected under official liability law in the area of urban land-use planning due to the lack of ownership or other rights in rem to the operating property.
34.) Judgement of 14.01.2008, Higher Administrative Court NRW, Ref.: 7 D 12/07.NE
Content: On the questions of the effectiveness of a development plan of a municipality.
35.) Judgement of 13.12.2007, Higher Administrative Court NRW, Ref.: 8 A 2810/04
Content: The plaintiff, a farmer, is the operator of an Enercon E-40 wind turbine with a total height of 99.9 metres, which he erected approx. 100 metres away from his farm.
36) Judgement of 28 November 2007, NRW Higher Administrative Court, Ref.: 8 A 2325/06
Content: The plaintiff contests the granting of three planning permissions by which the defendant authorised the defendant to erect three wind turbines. The plots of land are part of the plaintiff's municipal area.
37.) Judgement of 15 November 2007, Administrative Court Aachen, Ref.: 6 K 71/07
Content: The plaintiff applied to the defendant for authorisation to erect and operate four wind turbines in the area of the concentration zone for wind turbines shown in the defendant's land use plan.
38.) Judgement of 19.06.2007, Higher Administrative Court NRW, Ref.: 8 A 2677/06
Content: The plaintiff is seeking authorisation to erect a wind turbine.
39.) Judgement of 10 March 2010, Minden Administrative Court, Ref.: 11 K 53/09
Content: The defendant is obliged to grant the plaintiff an immission control licence for the construction and operation of two wind turbines.
40.) Judgement of 13.01.2010, Administrative Court Minden Ref.: 11 K 352/09
Content: The defendant is obliged to revoke its decision of 15 January 2009 and to issue the plaintiff with a preliminary decision under immission control law for the erection of a wind turbine in accordance with his application.
41) Judgement of 18 August 2009, NRW Higher Administrative Court, Ref.: 8 A 613/08
Content: The defendant is ordered to reassess the plaintiff's application for an immission control licence for the construction and operation of a wind turbine, taking into account the legal opinion of the court.
42.) Judgement of 22.10.2008, VG Minden, Ref.: 11 K 2288/06
Content: The defendant is obliged to grant the plaintiff the requested authorisation under immission control law to erect and operate three wind turbines.
43) Judgement of 28.08.2008, Higher Administrative Court NRW, Ref.: 8 A 2138/06
Content: The defendant is obliged to approve the plaintiffs' applications for immission control authorisations for the operation of four new wind turbines.
44.) Judgement of 09.07.2008, Administrative Court Minden, Ref.: 11 K 2528/07
Content: The defendant is obliged to grant the plaintiff an immission control licence for the erection and operation of a wind turbine for the period from 6 a.m. to 10 p.m.
45.) Judgement of 09.07.2008, Administrative Court Minden Ref.: 11 K 2530/07
Content: The defendant is obliged to grant the plaintiff an immission control licence for the construction and operation of a wind turbine.
46.) Judgement of 29.05.2008, Administrative Court Düsseldorf, Ref.: 11 K 5104/05
Content: The applicant applied to the State Environmental Agency for an immission control licence for the erection of three wind turbines. In the land use plan of the defendant valid at the time of the application, the planned location of the wind turbines was shown as an area for agriculture. The defendant is obliged to approve the application submitted by the plaintiff for a licence for the erection and operation of three wind turbines.
47) Judgement of 16.04.2008, Administrative Court Aachen, Ref.: 6 K 1065/07
Content: The defendant applied to the State Environmental Agency for a licence to erect and operate a wind turbine.
48.) Judgement of 23.01.2008, Higher Administrative Court NRW, Ref.: 8 B 215/07
Content: The defendant applied to the respondent for an immission control licence for the construction and operation of three wind turbines. The sites of the turbines are located in a designated concentration zone for wind turbines.
49) Judgement of 28 November 2007, NRW Higher Administrative Court, Ref.: 8 A 4744/06
Content: The plaintiff is seeking the granting of a preliminary decision under immission control law for the construction of a wind turbine.
50.) Judgement of 11.09.2007, Higher Administrative Court NRW, Ref.: 8 A 2696/06
Content: The plaintiff is seeking authorisation for the construction and operation of a wind turbine.
51) Judgement of 06.09.2007, Higher Administrative Court NRW, Ref.: 8 A 4566/04
Content: The plaintiff is seeking the granting of a preliminary decision under immission control law for the construction of a wind turbine.
52) Judgement of 13 June 2007, Minden Administrative Court, Ref.: 11 K 2482/05
Content: The defendant is obliged to grant the plaintiff a preliminary decision under immission control law on the admissibility of a total of two wind turbines under building planning law in response to his preliminary building enquiry.
53.) Judgement of 01.12.2006, Administrative Court Münster, Ref.: 10 K 1048/05
Content: The plaintiff applied to the State Environmental Agency in Münster for an immission control licence for the construction and operation of three wind turbines.
54.) Judgement of 18.10.2006, Administrative Court Arnsberg, Ref.: 1 K 3768/04
Content: The complaint concerns an exemption from the prohibitions of a landscape plan for the construction of a wind turbine.
55) Judgement of 19.09.2006, Higher Administrative Court NRW, Ref.: 10 A 973/04
Content: The plaintiff seeks the granting of a building permit for the erection of a wind turbine in the outdoor area of the municipal territory of the defendant, or alternatively a declaration that such a claim existed until the entry into force of an amendment to the land use plan.
56) Judgement of 05.09.2006, Higher Administrative Court NRW, Ref.: 8 A 1971/04
Content: In a letter dated 8 May 1997, the plaintiff applied for a preliminary building permit for the erection of ten wind turbines on several plots of land in the district belonging to the municipality of the defendant.
57) Judgement of 22 May 2006, NRW Higher Administrative Court, Ref.: 8 B 2122/05
Content: The applicant maintains a full-time business for horse breeding and training on an area of approx. 25 hectares on a plot of land located in an outdoor area and built with a residential building, a riding hall, horse boxes and other outbuildings, and permanently accommodates around 30 horses there. The defendant granted planning permission to a company in the wind energy sector to erect a wind turbine.
58) Judgement of 05.05.2006, Administrative Court Münster, Ref.: 10 K 2936/02
Content: The plaintiff is requesting the issuance of a preliminary decision under immission law regarding the planning law situation for the construction of a wind turbine.
59) Judgement of 31 March 2006, Münster Administrative Court, Ref.: 10 K 2918/02
Content: The plaintiff is the owner of several plots of land and applied to the defendant for authorisation to erect a wind turbine.
60) Judgement of 15 March 2006, NRW Higher Administrative Court, Ref.: 8 A 2672/03
Content: The plaintiff applied to the district administrator for a preliminary building permit for the construction of a wind turbine.
61) Judgement of 13.03.2006, Higher Administrative Court NRW, Ref.: 7 A 3414/04
Content: The plaintiff is seeking planning permission for the erection of two wind turbines.
62) Judgement of 13.03.2006, Higher Administrative Court NRW, Ref.: 7 A 3415/04
Content: The plaintiff is seeking planning permission for the erection of two wind turbines.
63) Judgement of 06.02.2006, Administrative Court Aachen, Ref.: 3 K 1350/05
Content: The council of the defendant decided to initiate an urban land-use planning procedure for the designation of a new concentration zone for wind turbines (decision to draw up an objective partial land-use plan) and to adopt a preliminary draft of the objective land-use plan for early public participation in accordance with Section 3 (1) BauGB and for the participation of the authorities and other public agencies in accordance with Section 4 (1) BauGB.
64.) Judgement of 22 September 2005, Higher Administrative Court of North Rhine-Westphalia, Ref.: 7 D 21/04.NE
Content: On the effectiveness of a development plan with reference to wind energy utilisation.
65.) Judgement of 28.01.2005, Higher Administrative Court NRW, Ref.: 7 D 35/03.NE
Content: The applicant is challenging the respondent's bylaws on a change ban for the area covered by the respondent's "wind power priority area" development plan, which have since been cancelled.
66) Judgement of 28 January 2005, NRW Higher Administrative Court, Ref.: 7 D 4/03.NE
Content: The applicant contests the statutes of the defendant regarding the change ban for the area covered by the "wind power" development plan and seeks a declaration that the change ban was invalid.
67) Judgement of 09.11.2004, Minden Administrative Court, Ref.: 1 K 4189/03
Content: The plaintiff runs a company that specialises in the construction and operation of wind turbines. It intends to erect two turbines on the territory of the defendant.
68.) Judgement of 29.07.2004, Administrative Court Düsseldorf, Ref.: 4 K 3944/02
Content: The plaintiff applied to the defendant for planning permission to erect a wind turbine.
69) Judgement of 17 February 2004, Minden Administrative Court, Ref.: 1 K 1067/02
Content: The plaintiff is seeking planning permission for the construction of a wind turbine.
70) Judgement of 17 February 2004, Minden Administrative Court, Ref.: 1 K 1068/02
Content: The plaintiff is seeking planning permission for the construction of a wind turbine.
71) Judgement of 06.08.2003, Higher Administrative Court NRW, Ref.: 7a D 100/01.NE
Content: A development plan for wind turbines is null and void if it stipulates a "bundled construction method" and areas that are to be kept free from development. The development plan is otherwise invalid.
72) Judgement of 8 November 2000, Arnsberg Administrative Court, Ref.: 1 K 2473/99
Content: The plaintiff operates wind turbines and is a compulsory member of the defendant. He is endeavouring to obtain a positive preliminary planning application for the construction of a wind turbine.
73) Judgement of 15.06.2000, Higher Administrative Court NRW, Ref.: 7 A 2235/99
Content: The plaintiff is a leaseholder of open space surrounding a plot of land which is shown as an area for agriculture and forestry in the land use plan of the defendant. The plaintiff applied to the defendant for authorisation to erect a wind turbine.
74) Judgement of 29.04.2010, VG Stuttgart, Ref.: 13 K 898/08
Content: On the admissibility under planning law of a spatially significant wind turbine in an outdoor area and on the invalidity of a regional plan due to a selection of potential sites for wind energy utilisation that was incorrectly weighed up.
75.) Judgement of 15.10.2009, VG Sigmaringen, Ref.: 6 K 3202/08
Content: On the subject of wind turbines and monument protection; also the surrounding area of a cultural landscape.
76.) Judgement of 25.07.2007, VG Sigmaringen, Ref.: 5 K 166/05
Content: There is no entitlement to authorisation for a wind turbine if there is a conflicting regional plan with other designated priority areas that cannot be objected to.
77) Judgement of 24 May 2007, VGH Baden-Württemberg, Ref.: 3 S 2789/06
Content: The need for legal protection for an application for judicial review against the partial updating of a regional plan ceases to apply when a new regional plan comes into force.
78.) Judgement of 29.01.2007, VG Stuttgart, Ref.: 16 K 2980
Content: The balancing of interests within the framework of Section 35 (1) BauGB does not permit compensation for impaired interests through advantages for other interests. It is reckless for a wind turbine to fall below the minimum distance required by the expert opinion from the published aerodrome circuit of a special landing site.
79) Judgement of 15.01.2007, VG Karlsruhe, Ref.: 8 K 1935/06
Content: Even after the introduction of Art. 10a of the EIA Directive in the version of Directive 2003/35/EC of 26 May 2003 (OJ EU No. L 156, p. 17 ), there is no corresponding procedural claim for the complaint of a third party affected that the legally prescribed EIA was not carried out with the required depth of examination.
80.) Judgement of 06.11.2006, VGH Baden-Württemberg, Ref.: 3 S 2115/04
Content: The exclusion of wind turbines in parts of a regional plan area can only be justified if the plan ensures that the priority areas designated as spatial planning objectives are legally and actually suitable for the utilisation of wind energy and create substantial space for this.
81) Judgement of 23.05.2006, VG Sigmaringen, Ref.: 9 K 1865/04
Content: The simplified withdrawal requirements of Section 50 LVwVfG only apply if the legal remedy, which is remedied by the withdrawal decision, is neither inadmissible nor manifestly unfounded. Even from a greater distance, wind turbines can seriously disturb the aesthetic perception of an observer due to the disharmony between the turbines and the landscape worthy of protection and grossly disfigure the existing landscape in a disproportionate manner.
82.) Judgement of 16.05.2006, VGH Baden-Württemberg, Ref.: 3 S 914/05
Content: Since 1 July 2005, wind turbines with a total height of more than 50 m have required a permit under immission law in the simplified procedure in accordance with § 19 BImSchG. The transitional regulation in § 67 Para. 9 Sentence 3 BImSchG, according to which proceedings for the granting of a building permit that became legally pending before 1 July 2005 are concluded in accordance with the old approval procedure law, also applies to actions for the granting of a preliminary building permit.
83.) Judgement of 03.04.2006, VGH Baden-Württemberg, Ref.: 5 S 2620/05
Content: On consideration in the relationship between a wind turbine that is privileged in an outdoor area and whose blade rotations cause visual irritation and a residential and office building that is approx. 400 m away, also located in an outdoor area and authorised.
84.) Judgement of 26.01.2006, VGH Baden-Württemberg, Ref.: 5 S 2516/05
Content: Even in the event that a permit under immission control law is required for the construction of a wind turbine, it seems appropriate to set the value in dispute of an action for an obligation at 10 % of the construction costs.
85.) Judgement of 28.01.2010, OVG Lower Saxony, Ref.: 12 KN 65/07
Content: The right to apply for a judicial review of a regional planning objective laid down in a regional plan may exist if the regional plan ceases to be in force during the judicial review proceedings. In addition, the applicant must have a legitimate interest in establishing that the standard was invalid.
86.) Judgement of 28 January 2010, OVG Lüneburg, Ref.: 12 LB 243/07
Content: The preliminary building permit for a wind turbine; representations in the land use plan and bird protection concerns as public interests (not) conflicting with the construction project.
87) Judgement of 16 December 2009, OVG Lüneburg, Ref.: 4 LC 730/07
Content: A detrimental change to the landscape caused by wind turbines for a period of at least 20 years may constitute a significant impairment of the landscape. § Section 7 para. 1 NNatG does not require a permanent impairment of the landscape. If impairments to the landscape are to be fully compensated for by replacement measures, it is usually necessary to redesign the landscape elsewhere in the area affected by the encroachment in a way that is appropriate to the type and extent of the functions and values of the landscape destroyed by the encroachment. In view of this, full compensation is only likely to be possible in exceptional cases if the landscape is impaired by wind turbines with a hub height of at least 50 metres.
88.) Judgement of 16.11.2009, OVG Lüneburg, Ref.:12 LC 181/07
Content: A judgement obtained by a limited partnership with the obligation to make a new decision also has legal effect directly in favour of the personally liable partner with regard to the legal opinion of the court that is decisive for the judgement; On the requirements for an error-free consideration when determining a height restriction for wind turbines in the land use plan; The transitional provision of § 67 para. 9 sentence 3 BImSchG, according to which proceedings for the granting of planning permission for wind turbines that became pending before 1 July 2005 are concluded in accordance with the provisions applicable up to that date, only covers cases in which planning permission could have been granted under the old law up to the date relevant for the legal assessment, 1 July 2005.
89) Judgement of 15.05.2009, OVG Lüneburg, Ref.: 12 LC 51/07
Content: On the requirements for an action for (continued) declaratory judgement after the application for an obligation to grant a preliminary building permit for a wind turbine has been completed.
90.) Judgement of 15.05.2009, OVG Lüneburg, Ref.: 12 LC 55/07
Content: If the building supervisory authority has refused to approve the project without comprehensively examining its compatibility with building law or other public law regulations due to a specific breach of the law, this is a "stuck" approval procedure in which the courts are authorised to limit themselves to a decision even if an action for an obligation is brought. Outside of a concentration area, a deviation from the rule of Section 35 para. 3 sentence 3 BauGB can only be authorised if it does not call into question the planning concept of the municipality and the private interest in the use of wind energy at the intended location deserves priority in an overall assessment of the circumstances characterising the individual case.
91.) Judgement of 22.01.2009, OVG Lüneburg, Ref.: 12 KN 29/07
Content: Errors that affect the main features of the planning cannot be rectified in a supplementary procedure. Accordingly, the supplementary procedure may not in turn modify the main features of the planning. The main features of the planning can be affected if, in a development plan amended by a supplementary procedure, areas of land that can be built on - in this case for the erection of wind turbines - which were specified in the original plan are not adopted in part and, as a result, a significant part of the plan area is no longer available for development (with wind turbines).
92) Judgement of 20 June 2008, OVG Lüneburg, Ref.: 12 LA 126/07
Content: The designation of a priority area for wind turbines in a regional spatial planning programme may prevent the erection of a wind turbine in this area that is not spatially significant and the "inferior" use of this site.
93.) Judgement of 28.05.2008, OVG Lüneburg, Ref.: 12 LB 64/07
Content: On the initiation of a (simplified) regional planning procedure for five wind turbines.
94.) Judgement of 29.04.2008, OVG Lüneburg, Ref.: 12 LC 20/07
Content: The review programme of a preliminary building permit for a wind turbine can be limited to individual questions of admissibility under building planning law in accordance with the preliminary building application. A preliminary building application will also be refused if the questions posed for review can be assessed in the interests of the client, but it is foreseeable from the outset that the project cannot be realised for other reasons (here: military flight safety). The preliminary building enquiry then lacks the necessary interest in a decision on the merits. If a preliminary building permit is applied for for a wind turbine and the project is specified in more detail in the administrative proceedings on the basis of a description of the turbine, the conversion of the preliminary building permit application in the course of the subsequent legal dispute to a different wind turbine (here: with a total height that is around 16 metres lower) constitutes an amendment to the action that must be measured against Section 91 VwGO.
95.) Judgement of 29.04.2008, OVG Lüneburg, Ref.: 12 LB 48/07
Content: The privileged status of wind turbines in accordance with Section 35 (1) No. 5 BauGB does not exclude the possibility that such a turbine may be permitted as a subordinate facility of an agricultural business in accordance with Section 35 (1) No. 1 BauGB. Even a wind energy converter with a total height of approximately 100 metres and an output of 600 kW can, in individual cases, fulfil a secondary function in relation to an agricultural operation if the vast majority of the energy generated is intended to supply this operation and only a smaller proportion is to be fed into the public grid.
96.) Judgement of 17.04.2008, VG Göttingen, Ref.: 4 A 64/05
Content: No exemption from the construction ban applicable to the protected area may be granted for a wind turbine in a landscape conservation area in the event of a detrimental change to the unencumbered landscape or if the special conservation purposes of the protected area are impaired.
The granting of an exemption under both § 53 para. 1 no. 1 lit. a) NNatG and § 53 para. 1 no. 2 NNatG requires an atypical situation that the legislator did not foresee, but would have exempted from the prohibition regulation if it had been aware of it. An interest of the general public that must be recognised in principle (here: use of wind energy) outweighs the conflicting public interest of landscape protection within the meaning of the exemption provision of § 53 para. 1 no. 2 NNatG and only requires exemption if it is reasonable to permit the project at the planned location in the landscape protection area in order to realise it. On the relationship between general landscape protection in building law (Section 35 (3) sentence 1 no. 5 BauGB) and special (area-related) landscape protection (ordinances pursuant to Sections 26, 30 NNatG and Section 53 NNatG).
5. no subsequent submission of discretionary considerations for the determination of a maximum fee for a negative decision in the event of a loss of discretion.
97.) Judgement of 17.09.2007, OVG Lüneburg, Ref.: 12 ME 38/07
Content: Neighbour protection against an immission control permit for the erection of wind turbines; impairment of commercial (office) use due to noise, shadow impact and possible ice throw from the turbines.
98.) Judgement of 18 July 2007, OVG Lüneburg, Ref.: 12 LC 56/07
Content: On the significance of the "requirement for consideration" under building law in the relationship between an existing airfield and additional wind turbines.
99.) Judgement of 13 June 2007, OVG Lüneburg, Ref.: 12 LB 25/07
Content: On the granting of a preliminary building permit for the erection of two wind turbines outside priority areas shown in the land use plan and on the alternative transition to a (continuation) application for a declaratory judgement due to an alleged claim for approval before the concentration planning came into force.
100.) Judgement of 13 June 2007, OVG Lüneburg, Ref. 12 LC 36/07
Content: For the granting of a preliminary permit under immission control law for the erection of two wind turbines outside of priority areas for wind energy utilisation shown in the land use plan.
101) Judgement of 18 May 2007, OVG Lüneburg, Ref.: 12 LB 8/07
Content: The rule of thumb according to which a nuisance caused by the expected periodic shadow impact of wind turbines is considered reasonable for the neighbourhood if the maximum astronomically possible shading duration is no more than 30 hours per year (corresponding to a real impact duration of 8 hours per year) and no more than 30 minutes per day must not be applied in the form of a legal principle; the actual circumstances of the individual case are decisive. On the problem of surcharges in the context of noise immission forecasts for the authorisation of wind turbines.
On the application of the transitional provisions of Section 67 BImSchG when switching from the procedure under building law to the procedure under immission control law for the authorisation of wind turbines.
102.) Judgement of 25.04.2007, VG Hannover, Ref.: 12 A 6919/04
Content: Fees for the immission control authorisation of wind turbines.
103) Judgement of 20 March 2007, OVG Lüneburg, Ref.: 12 LA 1/07
Content: Neighbour protection against wind turbines.
104.) Judgement of 29.12.2006, OVG Lüneburg, Ref.: 7 ME 263/02
Content: Approval in accordance with Sections 6 (1) and 5 BImSchG does not include an examination of whether the project is also compatible with the public law of a neighbouring country.
105.) Judgement of 13.12.2006, OVG Lüneburg, Ref.: 7 ME 271/04
Content: On the significance of procedural errors, including a potentially erroneous omission of the environmental impact assessment in third-party appeal proceedings under immission control law.
106) Judgement of 28 March 2006, OVG Lüneburg, Ref.: 9 LC 226/03
Content: A wind turbine with a total height of 100 metres or more is to be classified as spatially significant in the (northern German) lowlands. Whether a spatially significant wind turbine may be erected elsewhere than on the priority area designated for it under spatial planning regulations, in deviation from the general case of Section 35 (3) sentence 3 BauGB, must be reviewed on a case-by-case basis, taking into account any special features at the planned location.
107.) Judgement of 09.03.2006, VG Göttingen, Ref.: 2 A 235/04
Content: A municipality may limit the maximum construction height of wind turbines to 100 metres by means of a land use plan due to their designation as an obstacle to aviation for reasons of landscape and nature conservation.
108.) Judgement of 22 November 2005, VG Stade, Ref.: 2 B 1630/05
Content: The distribution of responsibility for the stability of existing wind turbines between the primary and secondary operators depends on the distance between the turbines. The distribution stipulated in the wind energy decree of the state of North Rhine-Westphalia, according to which the first operator remains responsible for the stability of his own turbine at a distance of more than 5 rotor diameters, leads to a fair distribution of the risk.
109.) Judgement of 17.11.2005, VG Lüneburg, Ref.: 2 A 168/04
Content: The content of a preliminary building permit.
110.) Judgement of 13.01.2005, VG Stade, Ref.: 2 A 941/03
Content: Section 12 para. 4 NNatG continues to apply for the transitional period from the entry into force of the BNatSchGNeuRegG until the repeal of Section 12 para. 4 NNatG. On the consideration of legal changes during the ongoing procedure when making discretionary decisions. Interventions in the landscape caused by wind turbines cannot be compensated in principle. The principle of proportionality for nature conservation requirements.
111) Judgement of 04.11.2004, VG Lüneburg, Ref.: 2 A 13/03
Content: On the necessity of a regional planning procedure for the erection of 5 wind turbines in the district of Celle.
112.) Judgement of 07.10.2004, OVG Lüneburg, Ref.: 1 ME 169/04
Content: Consultation of the municipality before consent is replaced in accordance with Section 36 BauGB.
The authorisation of a wind power plant - even a spatially significant one - in an outdoor area is not precluded by the public interest of the need for planning. The municipality cannot invoke the fact that an application for an immission control licence would have to be submitted instead of a planning application in order to refuse its consent in accordance with Section 36 (1) BauGB.
113) Judgement of 20.09.2004, OVG Lüneburg, Ref.: 7 ME 233/03
Content: Whether wind turbines are to be authorised in the formal procedure in accordance with § 10 BImSchG or in the simplified procedure in accordance with § 19 BImSchG is determined solely by the number of wind turbines in the area affected by the wind farm (as BVerwG, judgement of 30 June 2004 - 4 C 9.03 -).
114.) Judgement of 08.07.2004, VG Lüneburg, Ref.: 2 A 272/03
Content: On the exclusion effect of the provisions of a regional spatial planning programme with regard to wind turbines pursuant to Section 35 III 3 BauGB.
115.) Judgement of 06.05.2004, VG Stade, Ref.: 2 A 330/01.
Content: No. 1.6 of the 4th BImSchV also applies to installations for which an application for planning permission was submitted before this provision came into force. The 74th and 79th amendments to the Schwanewede land use plan are not effective. Individual case of a weighing error in the preparation of a land use plan. Individual case of the examination of nature conservation and landscape management concerns (here: not opposed).
116.) Judgement of 15 March 2004, OVG Lüneburg, Ref.: 1 ME 45/04
Content: There are no scientifically proven limit or guideline values for the assessment of periodic shadow impact from wind turbines. The rule of thumb that residential buildings should not be affected by wind turbines for more than 30 hours a year and no more than 30 minutes a day.
117) Judgement of 08.12.2003, VG Stade, Ref.: 2 B 1212/03
Content: Approval on an incorrect legal basis (building law instead of immission control law) affects the rights of neighbours just as little as the question of sufficient development. The outdoor area must always be kept free of development, which also has an effect on the reasonableness of immissions from wind turbines privileged in the outdoor area for people living there. Consideration of previous pollution. Individual questions on the presentation of impairments caused by noise, including infrasound, and moving shadows.
118) Judgement of 28.08.2003, VG Hannover, Ref.: 4 A 2750/03
Content: DEWI study unsuitable as pre-selection for land use plan. General distance requirement of 750 m between wind turbines and residential buildings in outdoor areas overestimates the need to protect residential areas.
119.) Judgement of 22 August 2003, OVG Lüneburg, Ref.: 7 ME 105/03
Content: Neighbour protection against wind turbines.
120.) Judgement of 09.07.2003, VG Hannover, Ref.: 12 A 253/02
Content: A joint municipality can depict a concentration zone for wind turbines in a member municipality in a land use plan with an exclusion effect for other member municipalities in accordance with Section 35 (3) sentence 3 BauGB if it provides substantial space for wind energy use on this area (denied here for a 185 square kilometre joint municipality that has "established" the existing stock of 5 wind turbines on an area of 0.3 square kilometres).
121) Judgement of 31.10.2002, VG Oldenburg, Ref.: 4 A 1777/01
Content: Preliminary building permit for wind turbine.
122.) Judgement of 20.12.2001, OVG Lüneburg, Ref.: 1 MA 3579/01
Content: A land use plan that does not designate a site for wind turbines does not have an exclusionary effect pursuant to Section 35 (3) sentence 3 BauGB. The designation of priority sites (for wind turbines) in the regional spatial planning programme must not be primarily based on the consent of the municipalities concerned.
123.) Judgement of 23 April 2001, OVG Lüneburg, Ref.: 1 MN 998/01
Content: On the state planning recommendation that wind farms should be kept at a distance of 5 kilometres from each other.
124) Judgement of 14.09.2000, OVG Lüneburg, Ref.: 1 L 2153/99
Content: The licensing authority may exclude the representation of individual sites for wind turbines in a land use plan from the licence if there are grounds for refusal only for these sites. This also applies if the land use plan of a joint municipality shows one site for each member municipality. The requirements for a potential bird sanctuary. The status of an area as a potential bird sanctuary must be taken into account in the consideration process in accordance with Section 1 (6) BauGB.
125) Judgement of 26 October 1999, OVG Lüneburg, Ref.: 1 M 3519/99
Content: No independently enforceable right to an environmental impact assessment regardless of whether the project is affected under substantive law. The privileged status of wind turbines is not called into question or relativised by the EIA Directive.
126.) Judgement of 20.07.1999, OVG Lüneburg, Ref.: 1 L 5203/96
Content: If, when searching for suitable locations for wind farms, the local authority assumes that wind turbines must keep a distance of 500 metres from individual farms and ponds, it is restricting the investigations in an inadmissible manner. Generalised distance zones of 800 m to 1200 m around villages, which are to be kept free of wind turbines, lack urban planning justification. Distances of 5 kilometres between priority sites for wind energy use are necessary in the coastal region in any case. The exclusionary effect of the representation of wind turbines elsewhere in the land use plan in accordance with Section 35 (3) sentence 3 BauGB only does not apply if the municipality did not consider the exclusionary effect when making the positive representation.
127.) Judgement of 18 March 1999, OVG Lüneburg, Ref.: 1 L 6696/96
Content: The municipality that has not refused its consent in accordance with Section 36 para. 2 sentence 2 BauGB in due time has no right of appeal against the planning permission for the corresponding project. Depictions in a draft land use plan for wind turbines at another location do not have an exclusionary effect pursuant to Section 35 para. 3 sentence 3 BauGB.
128.) Judgement of 22.01.1999, OVG Lüneburg, Ref.: 1 L 5538/97
Content: The exclusionary effect of a site designation for wind turbines pursuant to Section 35 (3) sentence 3 BauGB only applies to effective land use plans, but not to drafts ready for planning.
129.) Judgement of 29.12.1998, OVG Lüneburg, Ref.: 1 M 5428/98
Content: If the developer reduces the application for planning permission from the original 12 wind turbines to 6 turbines, only these are to be used as the basis for the assessment, even if the planning application for the other turbines is only withdrawn "temporarily". The interference potential of wind turbines. Minimum distances of wind turbines from residential areas. Measures to control emissions from wind turbines.
130.) Judgement of 18.12.1998, OVG Lüneburg, Ref.: 1 M 4727/98
Content: Objections lodged by neighbours against planning permission before the BauROG came into force on 1.1.1998 have a suspensive effect and do not lose this effect with the entry into force of § 212a BauGB. The protection of residential buildings against emissions from wind turbines - when assessing their permissibility - is not to be measured according to abstract minimum distances (a multiple of the total height of the turbine), but according to the specific emissions to be determined. Reference speed for the assessment of wind turbines.
131) Judgement of 10 November 1998, OVG Lüneburg, Ref.: 1 M 4432/98
Content: Neighbour protection based on the "principle of consideration" when erecting wind turbines.
132) Judgement of 15 October 1998, OVG Lüneburg, Ref.: 1 M 3774/98
Content: The infringement of neighbouring rights by wind turbines cannot be assessed on the basis of abstract distance models - such as 5-8 times the total height of the turbine. Rather, as far as noise pollution is concerned, the maximum noise of the turbine and the assessment level at the immission point must be used as a starting point.
133.) Judgement of 27.10.1997, OVG Lüneburg, Ref.: 1 M 4449/97
Content: On the requirement to set out the grounds for authorisation. On the fundamental importance of the case in the case of a neighbour's objection to a wind farm in an outdoor area. Serious doubts as to the correctness of a decision are not demonstrated with explanations that the legal judgement of the administrative court cannot be followed. On the particular factual or legal difficulties as grounds for authorisation.
134) Judgement of 28 October 1996, OVG Lüneburg, Ref.: 6 L 4040/94
Content: The so-called narrow-side privilege of Section 7 a NBauO also applies to wind turbines. On the inconsiderateness of a 22 metre high wind turbine next to a small residential garden in a residential area densely built up with detached houses.
135) Judgement of 19 April 1993, OVG Lüneburg, Ref.: 6 L 3096/91
Content: On the permissibility of erecting a wind turbine under construction planning law.
136) Judgement of 30 October 1990, OVG Lüneburg, Ref.: 1 OVG A 12/87
Content: A wind turbine is not a privileged project within the meaning of Section 35 (1) BauGB
137) Judgement of 01.02.2007, Schleswig-Holstein Administrative Court, Ref.: 12 A 136/06
Content: Permit under immission control law for six wind turbines with a total height of 125 m located approx. 1.6 to 3.8 km away from a registered immovable cultural monument.
138.) Judgement of 22 November 2007, Hamm Higher Regional Court, Ref.: 4 U 30/07
Content: The plaintiff gave up the agricultural business leased from his parents and took up a position as a sales representative. Due to the hidden reserves realised as a result, a particularly high tax burden was to be expected. On the advice of his tax advisor, the plaintiff looked for a long-term investment opportunity with high loss allocations that would allow him to save taxes. He contacted the defendant, who brokered investments in wind power plants and had displayed advertising brochures in the tax advisor's office. The parties only contacted each other by telephone, although it is disputed whether the plaintiff telephoned the defendant himself or was represented by his father.
139.) Judgement of 19 April 2001, Krefeld Regional Court, Ref.: 3 O 355/00
Content: The defendant is ordered to purchase all the electricity offered by the plaintiff via its wind turbine.
140.) Judgement of 03.07.2009, Schleswig-Holstein Higher Regional Court, Ref.: 14 U 96/08
Content: The grid operator is not obliged to provide the most favourable connection point without a specific request from the party wishing to feed into the grid. However, if it is requested to do so and does not name the correct connection point, this may constitute a breach of duty within the meaning of Section 280 (1) BGB. On the assumption of a commercial transaction with energy supply companies.
141) Judgement of 23 December 2008, Regional Court Kiel, Ref.: 16 O 213/05
Content: The basis for the claim is Sections 433, 459, 462, 465, 467 and 346 et seq. The contract is a purchase contract and not a contract for work and labour because it does not relate to the provision of work and labour, but rather the delivery of a wind turbine, which the defendant manufactures in series. A wind turbine is also not a building that becomes an essential part of the property in accordance with § 94 BGB and therefore precludes conversion. Rather, it is a sham component within the meaning of § 95 BGB.
142.) Judgement of 09.10.2008, Schleswig-Holstein Higher Regional Court, Ref.: 16 U 19/08
Content: In the case of purchase contracts for wind turbines, the manufacturer's general terms and conditions contain effective warranty provisions to the effect that the promised performance ("performance curve") is measured according to standardised standard conditions in accordance with common test procedures.
143.) Judgement of 07.09.2007, Schleswig-Holstein Higher Regional Court, Ref.: 4 U 156/06
Content: A contract for the purchase of wind turbines from the manufacturer is a purchase contract (with installation obligation) despite the associated obligation to install them.
144.) Judgement of 14 March 2007, LG Itzehoe, Ref.: 2 O 156/06
Content: Obligation of a grid operator to expand a transformer station required due to the connection of a wind turbine to the electricity grid; claim for damages by the applicant in the event of refusal of a connection. The construction of a new transformer station for the feed-in of wind energy falls under the obligation to expand under § 4 para. 2 sentence 4 EEG.
145.) Judgement of 10.07.2008, OVG Lüneburg, Ref.: 12 ME 389/07
Content: Wind turbines and monument protection: It must be assumed with the Administrative Court that the contested approvals are unlikely to infringe the applicant's protected neighbouring rights following the summary examination of the factual and legal situation required in interim legal protection proceedings. As the owner of a cultural monument within the meaning of Section 3 (1) NDSchG, the applicant's complaint is based solely on monument protection concerns, in particular a violation of Section 8 sentence 1 NDSchG.
146) Judgement of 17 November 2006, OVG Lüneburg, Ref.: 7 ME 62/06
Content: The owner of a listed building is not entitled to prevent wind turbines in his neighbourhood that could potentially affect the listed building.
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