Bavarian Administrative Court, 12 October 2010 Ref.: 14 ZB 09.1289
Solar installations (photovoltaic systems) must comply with all relevant regulations of public building law during their construction. Public building law includes building planning law, building regulations law and so-called ancillary building law. In historic city centres, ancillary building law in the form of monument protection in particular often prevents the installation of solar installations on listed buildings.
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 Bavaria, on 25 June 1973, the Bavarian State Parliament passed the Act on the Protection and Care of Monuments, which contains the basic provisions on monument protection and preservation in Bavaria (last amended by the Act amending the Bavarian Building Code, the Building Chamber Act and the Monument Protection Act of 27 July 2009).
According to Art. 4 Para. 1 of the Bavarian Monument Protection Act, monument owners are obliged to maintain and repair their monuments, to treat them appropriately and to protect them from endangerment as far as this can be reasonably expected of them. Anyone who owns a listed building is therefore also responsible for the general public.
The Bavarian Administrative Court has now had to decide whether the installation of a photovoltaic system on the roof of a listed church from the previous century violates the Bavarian Monument Protection Act.
Facts of the Case The applicant (parish church foundation) had applied for a permit under monument protection law to build a photovoltaic system on the church building, which was rejected by the competent authority. The applicant took legal action against this refusal before the Ansbach Administrative Court, which dismissed the action on the grounds of monument protection. The applicant then applied for leave to appeal against the judgement of the Bavarian Administrative Court in Ansbach.
Bavarian Administrative CourtIn the opinion of the Bavarian Administrative Court, there was no serious doubt that both the competent authority and the Ansbach Administrative Court were right to refuse the licence. Contrary to the applicant's view, it was not objectionable that the Administrative Court had categorised the building as a typical Nuremberg church building from the 1920s and 1930s. Its status as a listed building was not cancelled out by extensions from the 1960s. It is true that the photovoltaic system is to be erected for the most part on the extension. However, it did not matter whether it should also be considered a monument, as the photovoltaic system would in any case have an impact on the original listed church building due to its immediate proximity. The balancing of the conflicting interests in the refusal of the listed building licence was not objectionable. The climate and environmental concerns had to be taken into account when exercising discretion. However, the defendant had dealt with this sufficiently. There was therefore no restriction of the authority's discretionary powers, especially as the applicant had other buildings (e.g. the vicarage) available for use for photovoltaics.
Source: Bavarian Administrative Court
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