Trier Administrative Court, 29 September 2010, Ref. 5 K 2/10.TR
When erecting and operating wind turbines, numerous public law regulations must be observed, in particular immission control, environmental and building regulations.
Particularly in disputes involving neighbours, the focus is on questions of immission control law (see e.g. judgement of 17 September 2007, OVG Lüneburg, Ref.: 12 ME 38/07; judgement of 15 October 1998, OVG Lüneburg, Ref.: 1 M 3774/98; judgement of 1 February 2007, Schleswig-Holstein Administrative Court, Ref.: 12 A 136/06). (Wind energy) installations pursuant to § 3 Para. 5 BImSchG are subject to the scope of the Federal Immission Control Act pursuant to § 2 Para. 1 No. 1 BImSchG. The installations requiring authorisation are listed in the 4th BImSchV. According to Section 6 (1) BImSchG, the authorisation required under Section 4 BImSchG must be granted if the obligations arising from Section 5 BImSchG and an ordinance issued on the basis of Section 7 BImSchG are fulfilled and no other public law regulations conflict with this. § Section 5 BImSchG specifies 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, TA-Luft and TA-Lärm, whereby TA Lärm must always be consulted in the context of complaints to record and assess the effects of noise.
FactsIn 2005, the competent authorities in the Mehrung district of Rhineland-Palatinate granted authorisation for 8 wind turbines, which would form a wind farm with the existing wind turbines there. The plaintiff, a neighbouring farmer, unsuccessfully challenged this approval in summary proceedings before the courts and in official objection proceedings. After the objection notice was issued in November 2009, the plaintiff filed an action on the grounds that the turbines arranged in a semi-circle around his property would cause unreasonable noise pollution on the one hand and an unreasonable visually oppressive effect on the other.
Trier Administrative CourtThe Trier Administrative Court has now ruled that, according to the noise immission forecast on which the official authorisation was based, compliance with certain conditions imposed in the authorisation (such as noise-reduced operation at night; prohibition of operation with sound) would not result in unreasonable noise nuisance for the plaintiff. The authorisation is also not rendered unlawful by the fact that the permissible values are repeatedly exceeded despite the conditions. The judges were also unable to establish the "visually oppressive effect" claimed by the plaintiff. Due to the high tree population, the turbines were not perceptible from the majority of the property.
Source: Trier Administrative Court
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