New distance rules for wind turbines

The new rules on minimum distances between wind turbines and residential areas are in force. The recast version of section 249(3) German Building Code (Baugesetzbuch – BauGB) by means of the Act on the Harmonisation of Energy Conservation Legislation for Buildings (Gesetz zur Vereinheitlichung des Energieeinsparrechts für Gebäude) was promulgated on 13 August 2020 in the German Federal Law Gazette and is in force since 14 August 2020.

The new rules leave it largely up to the German federal states (Länder) to decide on minimum distances to be observed. According to federal law, wind turbines are privileged to be constructed in outlying areas under section 35(1) no. 5 German Building Code. According to the newly cast provision, federal states may determine that this privilege applies only if the wind turbines comply with certain minimum distances to residential areas defined under federal state law. The minimum distances can be fixed at 1000 metres. This maximum does not apply to any federal state rules already in place which provide for larger distances and have been issued under section 249(3) German Building Code, old version, on or before 31 December 2015 (e.g. in Bavaria).

It appears doubtful whether the provision now in force will put an end to the ongoing discussions regarding the legal obstacles to the further expansion of wind energy in Germany. Most recently, the development of onshore wind turbines has significantly decreased, mainly due to the limited space available, complex planning procedures and local opposition. A minimum distance of 1000 metres to residential areas which in many federal states is more than the distances applying up to now and which other federal states are likely to make full use of, given the ongoing public pressure, will even further reduce the areas available and will probably add to another slowdown in the expansion of wind energy. In light of this it appears necessary to simplify the planning framework in place for the expansion of wind energy and to reduce obstacles to the construction of onshore wind turbines.