Hanover Administrative Court, decision of 29 November 2010, (Ref.: 4 B 3164/10)
As part of the expansion and promotion of renewable energies, more and more biogas plants are being built in Germany. When handling these plants, penetrating odours are repeatedly produced by the release of the gases ammonia and hydrogen sulphide. These odours are therefore often the subject of neighbourhood complaints in interim legal protection proceedings or in proceedings on the merits.
According to Section 3 (2) BImSchG, odour is an air pollutant and therefore an immission. In Germany, the limitation of emissions of air pollutants and noise is regulated in the Federal Immission Control Act (BImSchG) and its associated ordinances, in particular the Technical Instructions on Noise and the Technical Instructions on Air Quality Control.
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.
In a neighbour protection procedure for interim legal protection, the Hanover Administrative Court now had to decide whether a biogas plant was to be refused the required immission control permit due to odour nuisance.
FactsThe applicants were residents of a small town in Lower Saxony and filed an urgent application against the immission control authorisation of a biogas plant by the Hanover State Trade Supervisory Office. The plant was to be built around 250 metres away from the applicants' homes. The applicants were of the opinion that the intended construction of the biogas plant would violate their neighbourhood protection rights.
Hanover Administrative CourtThe Hanover Administrative Court did not follow this view. The odour immissions emitted by the plant were to be assessed in accordance with the Odour Immission Directive - GIRL - and were therefore irrelevant because the additional odour hours amounted to a maximum of 2 % of the annual hours. The noise emissions to be expected from the operation of the plant were also irrelevant. According to the calculations carried out by an expert on the basis of TA Lärm, they would be more than 6 dB(A) below the immission guide value applicable to the applicants. Dust nuisance, particularly from delivery traffic during the harvest period, was also not to be expected. The plant processes maize and grass silage. Neither of these are fermentation substrates that could be expected to produce dust requiring special dust precautions. In addition, the access road to the plant is asphalted. It was not to be expected that substances hazardous to health would be emitted from the plant, as only renewable raw materials and liquid manure would be used, not animal by-products. There were no indications that this would pose a health risk to neighbouring residents. Finally, the precautions against incidents also raised no concerns. There are no known cases of properties within a radius of more than 200 metres being hit by debris in the event of an accident at a biogas plant.
Source: Administrative Court of Hannover
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