The Federal Constitutional Court in Leipzig expressed doubts that defects in draft development plans for a wind farm could be considered irrelevant and that such a development plan can be “rescued”.
The supreme administrative court in Germany perceives a potential breach of the European Environmental Impact Assessment Directive (EIA Directive). With the ruling of 14 March 2017, judges took the legal dispute to the European Court of Justice for clarification about whether German provisions on planning safeguards satisfy the requirements of EU law.
Background to the legal dispute
The context of this dispute is an application for a judicial review against a development plan which intended to establish the legal conditions to add four further wind turbines to a wind farm. The development plan was considered unlawful because the public had not been fully notified via the public consultation process, i.e. the required statements of which environmental information could be viewed via the municipality had not been released. Pursuant to German law, these defects would initially be considered irrelevant in accordance with Section 215 Federal Building Code (Baugesetzbuch, “BauGB”), because the claimants had not notified the municipality of them within one year. Lüneberg Supreme Administrative Court had therefore rejected the application for judicial review.
The Federal Administrative Court now sees a need for clarification on whether Section 215 BauGB regarding implementation of a development plan despite procedural flaws is compatible with the EIA Directive. In the scope of the EIA Directive, it is stated that European law requires access to a court to dispute the lawfulness of a sovereign act. According to the European Court of Justice (ECJ) ruling of 15 October 2015, any grounds for complaint may not be further restricted by national law. The Federal Administrative Court therefore considers that a restriction of legal protection, inadmissible in European law, may be possible in this respect.
Practical impact
The ECJ ruling poses risks, in particular for municipalities and investors in wind turbines. In practice, infringements of Section 3 paragraph 2 subparagraph 2 (1) BauGB are widespread. With its ruling of 18/07/2013, the Federal Administrative Court decided that environmental issues must be collated into subject blocks when interpreting development plans, and that they should be set out as bulletpoints in the public notice. Many development plan processes do not meet these strict requirements, and because of this a number of ‘impaired’ development plans have been put on hold based on the provisions of Section 215 BauGB. Opponents of wind farms could have another effective line of attack in legal arguments against wind turbines if the ECJ interprets the EIA Directive strictly and therefore limits the scope of Section 215 BauGB. The ECJ ruling is therefore eagerly awaited.
Postscript
In the meantime, the applicant has withdrawn the application for judicial review. The Federal Administrative Court discontinued proceedings in its decision 4 CN 1.18 of 01/03/2018, with the result that the ECJ will no longer rule on the question referred. As such, the legal uncertainty created by the request for a preliminary ruling will continue.
Dr Johannes Badenhop