Berlin Administrative Court, 09.09.2010 Ref.: VG 16 K 26.10
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 prevented the construction of solar installations on listed buildings. However, due to the requirements of the EEG to increase energy generation from renewable energies and the inclusion of environmental protection in Article 20 of the German Constitution, priorities seem to have shifted in favour of renewable energies. This is indicated by a much-noticed ruling by the Berlin Administrative Court on 9 September 2010. It is true that 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 NRW, for example, the "Law on the Protection and Care of Monuments in the State of North Rhine-Westphalia" (Denkmalschutzgesetz - DSchG) of 11 March 1980. Nevertheless, such judgements generally have a guiding effect for the whole of Germany.
FactsThe plaintiff in the above-mentioned case owns a house built in 1928 that belongs to a housing estate in Berlin-Zehlendorf. Both the plaintiff's house and the other houses on the estate were part of an architectural dispute which became known throughout Germany and which took place in 1929 between the architects and owners of this estate and the estate in the immediate neighbourhood ("Zehlendorf Roof War"). This Zehlendorf Roof War centred on the different roof shapes of the two estates (flat roofs and pitched roofs).
The plaintiff applied to the heritage authority for a listed building licence for a solar installation on his roof. The authority rejected this, stating that the installation would lead to a recognisable change to the original substance of the house, which was worth preserving. Furthermore, there was a risk of setting a negative example for the entire Zehlendorf neighbourhood. In the opinion of the authorities, the "Zehlendorf Roof War" also stood in the way of authorisation, as the development of the roof would also have an impact on the heritage value of the estate. The plaintiff then took legal action before the Berlin Administrative Court to have the permit granted.
Berlin Administrative CourtThe Berlin Administrative Court ruled in favour of the plaintiff in the judgment cited above. In principle, the monument authority is free to decide whether a building owner's project is compatible with the monument or not. Nevertheless, it must always weigh up interests on a case-by-case basis. In the present case, however, the weighing of interests carried out by the authority in this way had led to an unlawful decision by the authority. Firstly, the solar installation was planned on the garden side of the house, which was difficult to see, and was therefore not suitable from the outset to impair the protected property. Furthermore, the uniformity of the roofs and the associated heritage value of the estate for the "roof war" had already been largely lost over time due to the installation of satellite dishes and television aerials. The court also mentioned the fact that environmental protection was enshrined in the German Basic Law in 2005.
Source: Administrative Court of Berlin
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