SCHULTE RIESENKAMPFF Rechtsanwaltsgesellschaft mbH: The Legal Frame for the Planning of Onshore Wind Power Plants by Municipalities

The expansion of renewable energy sources is one of the most trending topics of the European politics. The goal of the German Government is for renewable energy to make up 20 to 25 % of the total national power production by 2025. According to the Renewable Energy Law, renewable energies are supposed to cover 40 % of the German gross electricity consumption by 2025 and 80 % by 2050. But to implement these goals, new wind power plants have to be build first; the municipalities are responsible for planning those projects.

The legal frame for onshore wind power plants is divided into three separate planning levels: The State Planning Act, the Regional Planning and the land-use plans, meaning both the Zoning Plan and the Development Plan. All three planning levels each set complex requirements for the construction of a wind power plant and have to be complied with.

As a general rule, the construction of a wind power plant is permitted as a privileged project, as long as there are no contrary public interests. Nonetheless, the municipalities will want to have a saying in whether a power plant will be built on their territory and where exactly that is to take place. Therefore, in practice, municipalities prevailingly take advantage of creating planning restrictions by changing their zoning plan.

The municipality can mark special concentrated areas for the construction of wind power plants in the zoning plan, banning them from the rest of the municipal territory. Additionally, the zoning plan can mark special areas only for wind power plants, being the ideal place for wind farms, or determine height limits. The determination of concentrated areas requires a multiphase legal consideration process and has to be comprehensively justified. Otherwise, a judicial review at the administrative court can be successful and potentially lead to claims for damages.

The Development Plan contains controlling elements such as required set-back lines for the fundament, the tower and the rotor of the wind power plant as well as requirements concerning the degree of the building utilization, structural and technical facilities, immission protection and exterior design. The coordination of the project with the municipality can be recommended since it potentially leads to a project based development plan. Finally, other legal requirements, such as the environmental assessment and the participation of third parties have to be observed as well.

In summary, the legal frame for onshore wind power plants is very complex and poses a challenge to both the municipalities and the developers. Nevertheless, the requirements also lead to legal certainty which protects construction planning on both sides.