Hessian Administrative Court, 17 March 2011, Ref.: 4 C 883/10.N
Pursuant to Section 1 ROG, the entire territory of the Federal Republic of Germany is to be developed, organised and safeguarded by means of comprehensive and coordinated spatial development plans.
The means for developing these spatial development plans is supra-local spatial planning law. This therefore relates to spatially significant plans and measures (Section 3 No. 6 ROG) whose objectives go beyond local concerns.
Since the reform of the Spatial Planning Act, spatial planning law has found its legal basis in the "Act to Revise the Spatial Planning Act and to Amend Other Regulations", which came into force on 30 June 2009. The Spatial Planning Act 1997 has expired.
The right to legislate on spatial planning is subject to concurrent legislation (Art. 74 Para. 1 No. 31 GG)
Within the framework of spatial planning, state development plans and regional plans in particular must be drawn up. The regional plan is the spatial development plan for a planning region.
It is developed from the state development plan, concretises the general objectives and principles according to the regional characteristics and thus provides a framework for the urban land-use planning of the municipalities.
The regional planning associations are obliged to draw up a regional plan for their planning region in accordance with Section 8 para. 1 sentence 1 no. 2 ROG.
In the regional plans, the principles according to § 2 ROG and the objectives and principles of the state development plan are spatially and objectively shaped on the basis of an assessment of the state of nature and landscape as well as spatial development.
In particular, priority areas can be designated in the regional plans with the aim of limiting certain land uses on certain areas.
Regional plans are often the subject of judicial review proceedings. This is a judicial procedure in which the validity of a legal standard is reviewed. Standardisation review proceedings are provided for in constitutional jurisdiction and administrative jurisdiction.
In the above-mentioned decision, the Hessian Administrative Court now had to decide whether the priority areas with exclusion effect for wind turbines defined in the 2009 North Hesse Regional Plan were effective.
FactsThe Regional Plan North Hesse 2009 stipulates that in the "priority areas for wind energy utilisation" designated in the regional plan, the construction and operation of spatially significant wind turbines has priority over conflicting plans and uses and that the planning and construction of spatially significant wind turbines outside these priority areas is not permitted.
However, as a wind turbine operator wanted to erect four of its turbines on leased land outside the priority areas for wind energy utilisation, this company applied for a review of the regional plan of the Kassel Regional Council.
VGH KasselThe Constitutional Court of Kassel has now ruled that the target definition in the regional plan is invalid. In the opinion of the VGH, neither the regional plan itself nor the preparation documents comprehensibly documented the reasons why the regional assembly had reduced the potential area generally suitable for wind power utilisation.
Source: Higher Administrative Court of Hesse
Related court decisions:
22 November 2000, VG Dessau, Ref.: 1 A 121/99DE
19.01.2001, OVG Greifswald, Ref.: 4 K 9/99
22 May 2002, VGH Munich, Ref.: 26 B 01.2234
06.11.2006, VGH Baden-Württemberg, Ref.: 3 S 2115/04
24 May 2007, VGH Baden-Württemberg, Ref.: 3 S 2789/06
25.07.2007, VG Sigmaringen, Ref.: 5 K 166/05
28.01.2010, OVG Lower Saxony, Ref.: 12 KN 65/07
28.01.2010, OVG Lower Saxony, Ref.: 12 KN 65/07
29.04.2010, VG Stuttgart, Ref.: 13 K 898/08
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