The utilisation of wind power through wind turbines ("WTG") has developed in various phases since the Electricity Feed Act came into force in 1991.
In the 1980s and 1990s, wind turbines were often approved in scattered locations as so-called farmstead wind turbines, which were financed and operated by private individuals or small operating companies.
From the mid-1990s onwards, more emphasis was placed on the involvement of local residents and the construction of "community wind farms" in so-called concentration zones was promoted.
The adoption of the Renewable Energy Sources Act (EEG) in 2000 finally brought about the breakthrough of wind energy utilisation and resulted in the extensive construction of wind farms both in coastal regions and in inland locations with high wind yields.
Due to this uneven development and for economic and environmental reasons, there are therefore several reasons to be able to better utilise domestic areas with high wind yields in the future through "repowering":
1. planning law advantages
In the 1990s, due to unclear legal framework conditions, immission and building code decisions in the approval process for wind turbines were often made contrary to the legal situation applicable today.
The legal requirements for the approval of a wind farm have also frequently changed, meaning that old turbines would no longer be eligible for approval from today's perspective. For example, until 1998, the immission-relevant sound power level was set at a wind speed of 8 m/s at a height of 10 metres as part of the noise report. Since 1998, a wind speed of 10 m/s has been used for this purpose.
The possibility of correcting such wrong decisions or changes in the interests of the municipality and the operators of the wind farms and thus also gaining greater acceptance among the population for such turbines lies mainly in "repowering".
This is the replacement of older WTGs with new models.
2. economic advantages of repowering
The average output of a wind turbine at the beginning of the 1990s was 300 kW with a maximum hub height of 40 metres and a rotor diameter of around 30 metres.
Today's wind turbines can already achieve rated outputs of up to 7.5 MW with a hub height of 135 metres (total height around 200 metres) and a rotor diameter of 127 metres.
Due to this considerable increase in output, it is possible to achieve significantly higher yields in high-yield wind areas, which can offset the costs of repowering after a short time.
In addition, the maintenance costs of modern wind turbines are relatively low in relation to the energy generated, as considerable progress has also been made in this area over the years. The annual maintenance costs for older turbines amount to around 3% of the original investment sum, while the annual maintenance costs for newer turbines are likely to be around 1.5 - 2%.
One advantage over new turbines is the possibility of using existing infrastructure (paths, grid connection, cables, etc.) of the older wind farm for the new turbines.
Repowering is also subsidised by the legislator, with the EEG providing for an increase in the initial remuneration of 0.5 cents per kilowatt hour.
3. improved grid integration
The new generation of wind turbines fulfil a wide range of requirements for improved grid integration. These include, for example, the ability to control active power, static grid support by feeding in reactive current or dynamic grid support to compensate for short-term voltage dips.
The legislator is supporting this development by paying a system service bonus under the EEG in order to counteract widespread grid instability caused by fluctuating electricity production from wind turbines.
4. better environmental compatibility of new plants
In general, it can be said that combining individual turbines in areas with high wind yields into a large wind farm counteracts the "asparagisation" of the landscape.
New turbines also generally have shadow impact modules that automatically calculate the shadow impact and can ensure that the turbine is switched off periodically to reduce the environmental impact.
The so-called "disco effect", which is caused by the glossy coating of the rotor blades, is also no longer a concern with new wind turbines.
Due to the larger rotor diameter, new wind turbines also have a lower speed and quieter operation, which results in a lower sound power level.
5. benefits for the municipality
An initial advantage for the municipality is the increased trade tax revenue due to the increased economic efficiency of the plants.
In addition, regional construction companies are often commissioned with the construction work and lease agreements with participating landowners in the respective municipality can be newly concluded or negotiated.
B. Legal requirements for "repowering"
The public law requirements for the realisation of repowering are presented below.
1. authorisation procedure
To this end, it is first necessary to describe the authorisation procedure for wind turbines in general.
a.Environmental Impact Assessment Act ("UVPG")
The environmental impact assessment ("EIA") is an assessment procedure prescribed by the EU, which is used to assess the environmental impact of projects before they are authorised.
In Germany, the corresponding EC Directive was implemented by the UVPG (and in Lower Saxony, for example, also by the NUVPG).
The erection of one or two wind turbines does not trigger an obligation to carry out an environmental impact assessment.
According to Sections 3b, 3c in conjunction with Annex No. 1.6 UVPG, a site-specific preliminary assessment is required for wind farms with 3 to 5 turbines, a general preliminary assessment for wind farms with 6 to 19 turbines and an EIA for wind farms with 20 or more turbines if the turbines are higher than 50 metres.
The Federal Administrative Court defined what constitutes a wind farm in this sense in its judgement of 30 June 2004 (judgement of 30 June 2004 - 4 C 9/03).
Accordingly, a wind farm exists if there are at least three wind turbines that are spatially assigned to each other in such a way that their impact areas overlap or at least touch.
This categorisation is therefore independent of whether the individual WTGs are operated by several independent operators.
b. Federal Immission Control Act ("BImSchG")
aa. Applicability of the BimSchG
Installations in accordance with § 3 Para. 5 BImSchG are subject to the scope of the Federal Immission Control Act in accordance with § 2 Para. 1 No. 1 BImSchG. The competent authority for authorisation is generally the lower immission control authority or the district government.
The installations requiring authorisation are listed in the 4th BImSchV.
Until 1 July 2005, only a building permit was required for the approval of up to 2 wind turbines and an immission control permit was only required for 3 or more wind turbines.
With the amendment to the 4th BImSchV, the responsibility should ultimately be bundled with the immission control authority, so that in accordance with § 2 Para. 1 i. In conjunction with No. 1.6 of Annex 4 BImSchV, wind turbines with a total height of more than 50 m generally require a simplified authorisation procedure in accordance with Section 19 BImSchG.
Wind turbines with a total height of less than 50 metres still only require planning permission.
The formal authorisation procedure must be carried out in accordance with Section 2 (1) sentence 1 no. 1c of the 4th BImSchV if an environmental impact assessment is required under the UVPG.
Building permits for less than 3 WTGs that were granted prior to the amendment of the 4th BImSchG on 01.07.2005 continue to apply as immission control permits in accordance with § 67 Para. 9 S. 1 BImSchG.
bb. Authorisation requirements
In accordance with § 6 Para. 1 BImSchG, the licence required under § 4 BImSchG must be granted if the obligations arising from § 5 BImSchG and a statutory ordinance issued on the basis of § 7 BImSchG are fulfilled and no other public law regulations on occupational health and safety etc. conflict with this.
§ Section 5 of the Federal Immission Control Act (BImSchG) defines the obligations of operators of installations requiring authorisation and is supplemented in particular by the general administrative regulations issued on the basis of Section 48 BImSchG, the Technical Instructions on Air Quality Control (TA-Luft) and the Technical Instructions on Noise (TA-Lärm).
Pursuant to Section 13 BImSchG, permits under immission control law have a concentration effect, i.e. they include other official decisions relating to the installation, such as permits, approvals, authorisations and licences under public law.
This is because the immission control authority examines the project's eligibility for approval on the basis of all public law and it follows from Sections 5, 6 (1) No. 2 BImSchG that the substantive building law (including building regulations law) must also be fully examined in the immission control approval procedure.
For this purpose, the competent authorising authority shall obtain the opinions of all authorities affected by the project.
c. Admissibility under building law
In the authorisation procedure, the immission control authority involves the building supervisory authority with regard to the permissibility of the project under building regulations and building planning law.
aa. Requirements under building planning law
The permissibility of the wind turbines under construction planning law depends on the location of the planned project.
German building planning law divides the area of a municipality into three areas: the outer area, the area covered by development plans and the inner area (contiguous neighbourhoods without a development plan).
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.
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.
Although the outdoor area is to be kept free of development in principle, wind turbines are permitted 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.
bb. Building code requirements
As part of the admissibility under building regulations, the authority checks, among other things, whether the project complies with the distance zones.
2. effects of the authorisation procedure on repowering
a. UVPG
aa. Installations not yet subject to EIA
According to § 3b Para. 3 UVPG, an EIA is mandatory for a change or expansion of an existing wind farm that was previously not subject to an EIA if the threshold value of 20 turbines is reached or exceeded for the first time by the turbines to be taken into account.
For smaller wind farms, the need for an EIA must be decided as part of the preliminary assessment described above. Existing wind turbines must be included in this process.
bb. Installations already subject to EIA
In the case of the expansion of a wind farm that is already subject to an EIA, only the scope of the planned expansion is decisive for the question of whether an EIA is required (Section 3e (1) no. 1 EIA Act).
In the case of a change to an installation that is already subject to an EIA, there is an obligation under Section 3e (1) No. 2 EIA Act to review an EIA obligation for the change.
b. BImSchG
Neither the change notification regulated in § 15 BImSchG nor the change authorisation regulated in § 16 BImSchG are applicable in the majority of repowering cases, as the construction of the turbines should generally be assessed as new construction.
In this respect, the measure lacks the character of a change.
The assessment in accordance with the BImSchG is therefore based on the principles described above.
c. Building planning law
With regard to the requirements under building planning law, a distinction must be made between the three municipal areas mentioned above.
Furthermore, it must be checked whether the repowering project is permissible on the basis of grandfathering.
aa. Scope of a qualified development plan
The project is permitted within the scope of a qualified development plan in accordance with Section 30 BauGB if it does not contradict the provisions of the qualified development plan and the development is secured.
In the context of spatial planning law, the development plan concretises the requirements of the regional plan and the land use plan.
To this end, the development plan defines the type of area and the building utilisation ordinance determines which building projects are permitted there.
In accordance with Section 11 (2) No. 8 BauNVO, the development plan can designate an area as a special area for facilities used for the research, development or utilisation of renewable energies, such as wind and solar energy.
Pursuant to Section 9 (1) No. 12 BauGB, in certain cases a designation as an area for the supply of energy may also be considered if the wind turbines serve the public supply.
However, the development plan will usually not only contain specifications on the type of building use but also on the extent of this use (hub height, spacing).
The limitation of the height of the wind turbines must be derived from the specific situation and justified from an urban planning perspective, e.g. with regard to the effects on the townscape and landscape (Section 1 (6) No. 5 BauGB).
If the newly planned wind turbines contravene these requirements, the project is not permitted and the development plan must be amended by the municipality concerned.
bb. Unplanned inner area
The construction of wind turbines is permitted in unplanned inner areas in accordance with Section 34 of the German Building Code (BauGB) if the type and extent of the building use fits in with the character of the immediate surroundings and the development is secured.
cc. Outdoor area
The erection of wind turbines in outdoor areas is privileged in accordance with Section 35 (1) No. 5 BauGB or Section 35 (1) No. 1 BauGB.
By granting privileges, the legislator has expressed that wind turbines are generally permissible in outdoor areas (BVerwG, judgement of 22 May 1987).
In this context, the different wording of Section 35 (1) sentence 1 BauGB and Section 35 (2) BauGB must be taken into account.
Privileged projects in accordance with Section 35 Para. 1 BauGB are permitted if they do not "conflict" with public interests. Other projects in accordance with Section 35 (2) BauGB are permitted if they do not "impair" public interests.
In contrast to "other projects", the public interests of privileged projects must therefore have a clear priority in order to prevent the permissibility of the project.
Section 35 para. 3 BauGB contains an exemplary list of such public interests.
Accordingly, public interests are understood to be reasons that are in the public interest, e.g. consideration of land use and regional development plans, avoidance of harmful environmental impacts, avoidance of split settlements, nature conservation, monument protection or the preservation of the townscape and landscape.
dd. Grandfathering
The protection of existing buildings is a principle developed by case law in order to resolve the conflict between the use and maintenance of a legally erected building and the conflicting building law requirements resulting from changes in the legal situation.
However, the new facility to be built will regularly differ both quantitatively and qualitatively from the old facility in such a way that it is no longer possible to speak of maintaining the facility in the sense of the protection of existing rights.
From this point of view, a grandfathering will therefore generally have to be denied.
Nevertheless, an examination in this regard should not be omitted.
3. bonus system of the EEG 2009
The legislative incentive to invest in the replacement of old systems is provided by Section 30 EEG. For onshore wind turbines that replace old turbines, the initial remuneration is increased by 0.5 cents per kilowatt hour for the first remuneration stage in accordance with Section 30 EEG.
The replaced systems must come from the same or neighbouring districts and be at least ten years old. A new system must achieve at least twice the output of the replaced system, but may not exceed five times the output.
From the fact that § 30 EEG refers to § 29 EEG, one can conclude that a possible system service bonus is valid in addition to the repowering bonus.
Scrapping the old system is no longer necessary to obtain the subsidy under § 30 EEG.
C. Legal implementation of repowering by the initiator/consultant
Once the admissibility of repowering under public law has been established, it must be implemented by the initiator/operator.
The legal implementation of the repowering project basically depends on who is the initiator of the project.
On the one hand, there is the possibility that one or more old operators will join forces to replace their old systems with new ones.
In this case, the legal "construct" of the wind farm remains fundamentally the same.
The second option is for a third-party investor to approach the existing plant operators to initially take over the plants and then replace them with new plants after dismantling.
In this case, due diligence (legal due diligence, technical due diligence and tax and financial due diligence) must first be carried out and then an investment or company acquisition (i.e. a "share deal" or an "asset deal").
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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