Renewable energies: Neighbour protection against biogas plants/biomass plants

As part of the expansion and promotion of renewable energies, more and more biogas plants/biomass plants are being built in Germany.

The disadvantage of this expansion is that penetrating odours from the release of the gases ammonia and hydrogen sulphide or pollution from the operating noise of the systems can occur again and again when handling these systems.

Noise and odours are therefore often the subject of neighbourhood complaints in interim legal protection proceedings or in proceedings on the merits.

The following explanations make it clear that both in interim legal protection proceedings and in the main proceedings of a neighbour to prohibit the construction/operation of a biogas plant, it is not only a matter of special legal knowledge, but also of the right timing.

Neighbours who feel disturbed by the operation or construction of a biogas plant should therefore always seek the advice of an experienced lawyer to enforce their neighbouring rights.

The procedure and likelihood of success of a neighbourhood action depends in particular on the approval procedures required for the installation, which can vary considerably depending on the type and size of the installation.

Requirements for biogas plants arise from a wide variety of legal areas such as immission control law, building law, nature conservation law, waste law, hygiene law, water law and fertiliser law.

A. Federal Immission Control Act ("BImSchG")

I. Applicability of the BimSchG

In principle, biogas plants are subject to the scope of the Federal Immission Control Act in accordance with Section 2 (1) No. 1 BImSchG. The competent authority for authorisation is generally the lower immission control authority or the district government.

When assessing whether a permit is required under immission control law, it should be noted that, in accordance with Section 13 BImSchG, permits under immission control law have a concentrating effect, i.e. they include other official decisions relating to the plant, such as permits, approvals, authorisations and licences under public law.

There is a list of installations requiring authorisation in the 4th Federal Immission Control Ordinance (4th BImSchV).

The authorisation requirement for biogas plants in accordance with the BImSchG is defined in the 4th BImSchV depending on the type of biogas plant according to the calorific output, the amount of waste, the final storage capacity or the classification of the plant as an ancillary plant to a livestock facility.

If an authorisation requirement exists, the type of authorisation procedure to be carried out must be examined further.

For installations listed in the 2nd column of the BImSchV according to this classification, a simplified authorisation procedure must be carried out; for installations listed in the 1st column, a formal authorisation procedure must be carried out.

The authorisation procedures are regulated in Section 10 BImSchG and the 9th BImSchV. It should be noted that this includes not only initial authorisations, but also modification authorisations, partial authorisations, preliminary decisions and the approval of early commencement.

II Formal authorisation procedure

The formal authorisation procedure requires, among other things, public participation. This means that the application documents are put on public display for one month. Anyone can then raise objections in writing up to two weeks after the end of the public display period.

The consequence of missing or delayed objections is that such objections can no longer be successfully raised in subsequent legal remedies ("preclusion effect"). However, if new "facts" arise or the documents submitted were incomplete or incomprehensible to the third party, such objections can of course also be raised in subsequent appeals (see Bay VGH, NVwZ 1989, 483).

III Simple authorisation procedure

In the simplified authorisation procedure in accordance with Section 19 BImSchG, no public participation is required, meaning that there is no preclusion effect.

B. Building law

As already mentioned, permits under immission control law have a concentration effect, meaning that other competent authorities are included in the decision.

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.

I. Building planning regulations

The permissibility of the biogas plant under building 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 unplanned 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. In this respect, the construction of biogas plants is permitted in particular in commercial, industrial and village/mixed-use areas.

For projects in inner areas without a development plan, the project must fit in with the character of the neighbourhood in terms of the type and extent of the building use, the construction method and the plot area to be built on.

Although the outdoor area should be kept free from development in principle, biogas plants are privileged in accordance with Section 35 (1) No. 6 BauGB if
- the installation is operated "in the context" of an agricultural, forestry or horticultural business,
- there is a spatial-functional connection with the business,
- the biomass originates predominantly from the neighbouring farm/and or from nearby farms,
- only one system is operated per farm or operating site,
- the installed electrical output of the system does not exceed 0.5 MW.

II Building regulations

As part of the admissibility under building regulations, the authority checks, among other things, whether the project complies with the distance zones.

C. TA Lärm/TA Luft

Irrespective of the requirement for an immission control licence, the technical regulations in particular, i.e. TA Luft and TA Lärm, must be complied with.

The Technical Instructions on Noise (TA Lärm) contain immission guide values with regard to the sound level of installations, the Technical Instructions on Air (TA Luft) contain emission limit values for numerous substances and substance groups, as well as immission limit values and provisions on measurement methods for emission and immission values.

However, the TA Luft does not contain any regulations on protection against harmful environmental impacts caused by odour emissions.

This immission control gap is closed by the Odour Immission Guideline, Determination and Assessment of Odour Emissions - GIRL.

The Federal Administrative Court ruled 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 of 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.

The respective odour immission situation can be recorded on site either by means of a grid inspection, an immission forecast (dispersion calculation) or a questionnaire survey.

Interesting judgements in the area of biogas plants:

BGH, 21.05.2008, Ref.: VIII ZR 308/07
VGH Munich, 25 October 2010, Ref.: 2 CS 10.2137
BVerwG, 11 December 2008, Ref.: 7 C 6/08
BVerwG, 07.03.2007, Ref.: 4 BN 1.07
OVG Lower Saxony, 14 March 2007, Ref.: 1 ME 222/06
OVG Rhineland-Palatinate, 22 November 2007, Ref.: 1 A 10253/07.OVG
VGH Baden-Württemberg, 03.05.2006, Ref.: 3 S 771/06
OVG Lower Saxony, 04.10.2006, Ref.: 7 ME 43/06
OVG Schleswig-Holstein, 31.07.2008, Ref.: 1 LA 39/08
OVG Schleswig-Holstein, 08.08.2006, Ref.: 1 MB 18/06
OVG Lower Saxony, 20 July 2007, Ref.: 12 ME 210/07
OLG Oldenburg, 30 March 2006, Ref.: 14 U 123/05
OVG Saxony-Anhalt, 10 May 2005, Ref.: 2 L 535/03
VG Stade, 30.01.2004, Ref.: 1B 2059/03
VG Mainz, 23.01.2007, Ref.: 3 K 194/06.MZ (cancelled OVG Koblenz, 22.11.2007, Ref.: 1 A 10253/07)
VG Stade, 09.12.2008, 2 A 1457/07

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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