VG Schleswig, 27.01.2011, Ref.: 6 A 60/10
We have often reported here on the legal requirements for the construction of biogas plants/biomass plants and presented current court decisions in this context:
Neighbour protection against biogas plants/biomass plants
No neighbour protection against odours from a biogas plant
The legal requirements for biogas plants can arise from a wide variety of legal areas such as immission control law, building law, nature conservation law, waste law, hygiene law, water law or fertiliser law.
In particular, the question of the reasonableness of odour and noise nuisance from the existing or planned biogas plant/biomass plant is in dispute between the parties in most cases.
As the TA Lärm and TA Luft ordinances associated with the Federal Immission Control Act do not contain any regulations on protection against harmful environmental impacts caused by odour immissions, this regulatory gap was closed by the Odour Immission Directive, Determination and Assessment of Odour Immissions - GIRL.
The Federal Administrative Court ruled on the GIRL in a decision dated 7 May 2007 (Ref.: 4 B 5.07): The GIRL is "a legally non-binding set of rules which merely contains technical standards based on the knowledge and experience of experts and which have the significance of general principles based on experience and anticipated expert opinions."
A large number of criteria must be taken into account when assessing whether a nuisance is to be regarded as significant and therefore as a harmful environmental impact in accordance with the GIRL. These criteria include the type of odour, the odour intensity, the daily and seasonal distribution of the impact, the rhythm in which the pollution occurs and the use of the respective area.
In the above-mentioned case, the VG Schleswig now had to decide whether a biogas plant in the immediate vicinity of a former agricultural residential and commercial building is unauthorised.
FactsThe plaintiff was a direct neighbour of an existing biogas plant in the district of Nordfriesland. The residential building owned by the plaintiff was part of a former agricultural residential and farm building.
In particular, the plaintiff felt that the odour nuisance emanating from the plant was unacceptable and therefore brought an action before the Schleswig Administrative Court.
Schleswig Administrative CourtThe VG Schleswig upheld the plaintiff's claim and ruled that the authorisation of the biogas plant violated the Federal Immission Control Act and the principle of consideration under building law.
According to Section 5 (1) No. 1 BImSchG, installations requiring approval must be constructed and operated in such a way that, in order to ensure a high level of protection for the environment as a whole, harmful environmental impacts and other hazards, significant disadvantages and significant nuisances for the general public and the neighbourhood cannot be caused.
In this context, the competent licensing authority had incorrectly weighted the immission forecast made.
As the biogas plant exceeds the value of 0.15 classified as harmless by the GIRL in outdoor areas by 0.05 on the basis of the forecast, further individual assessment would have been required in this case.
In the present case, however, this individual assessment could only be in favour of the plaintiff, as there was no necessary prior influence from other commercial enterprises or biogas plants either on the plaintiff's property or in the immediate vicinity.
In addition, the VG Schleswig ruled that the authorised facility did not represent a planned further development of the plaintiff's property and that the intensification of the use was not intended at the time of the sale of the residential building.
Furthermore, the biogas plant violates the building law requirement of consideration.
This requirement is an expression of the principle of proportionality and states that an appropriate balance must always be struck between the building owner and its surroundings.
It is violated if a project affects a specific person or a specific group of persons in a particularly individualised and qualified manner.
The VG ruled that this principle had been violated in the present case, as the neighbour's residential property was being completely crushed by the plant erected in the immediate vicinity and its operating processes.
This unacceptable situation for the neighbour could have been avoided by choosing a different location, possibly at the cost of a development plan procedure.
Source: VG Schleswig
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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