The Hessian Higher Administrative Court ("VGH") strengthened the rights of wind-energy companies by judgment dated March 17, 2011 (VGH, file no. 4 C 883/10. N, 4 C 883/10). It awarded them a right of their own to contest determinations of priority areas in regional plans themselves subject to certain requirements.
In the case which was decided upon by the VGH, a company had applied for the permit under immission-control law for the construction and operation of wind-energy power plants. No priority area had been designated in the Regional Plan of North Hesse 2009 in the area of the proposal. The Regional Plan stipulated that the planning and construction of wind-energy power plants relevant to regional planning was not permissible outside of priority areas for wind-energy use. That regulation in the Regional Plan implicates pursuant to sec. 35 (3) sentence 3 Federal Building Code (BauBG) that permits under immission-control law for the construction and operation of wind-energy power plants outside of priority areas are to be denied.
In order to create the requirement for the permit under immission-protection law, the company attacked the Regional Plan with a motion for judicial review at the VGH with the aim of having the designation of a priority area in that location declared ineffective.
The VGH initially declared the motion for judicial review to be permissible. Not all regulations can be attacked by means of a motion for judicial review, but only the ones which have an external effect. The VGH confirmed in its judgment that the objectives of regional development (the determination of priority areas for wind-energy use in this case) are legal regulations within the meaning of sec. 46 (1) no. 2 Administrative Court Procedures Court (VwGO) and may thus be subject to motions for judicial review by their respective target addressee, even if the state legislator does not stipulate a certain legal form (e.g. bylaw) for the Regional Plan.
However, judicial review may only be requested by persons who are able to assert that the attacked legal stipulation or its application infringes on their rights or will infringe them in the foreseeable future (so-called "authority to request"). In the case decided on by it, the Higher Administrative Court affirmed the company's authority to request and thus awarded it the right of filing a motion for judicial review. Regional Plans do indeed only directly bind the public-sector entities listed in secs. 4 (1), (3) no. 5 Regional Development Law (RGO) as well as the private persons of sec. 4 (3) when exercising public tasks insofar as they have to take the objectives of regional planning into consideration for their plans and measures relevant to regional planning. Nonetheless, the Higher Administrative Court affirmed the company's authority to request. It stated that it was at hand whenever the applicant establishes the serious intention of wanting to request a permit under immission-protection law for wind-energy systems in the areas affected by the determination of goal. For it stated that in that case the company was negatively affected by the attacked stipulation in the Regional Plan at least due to the preclusive effect of sec. 35 (3) Federal Building Code as regards the permit under immission-protection law.
The Higher Administrative Court stated the following in terms of contents:
A Regional Plan determining priority areas for wind-energy use with a preclusive effect for another place within the planning area was required to be based on a conclusive planning concept for the entire region which was sufficiently comprehensible and documented. This was lacking if such a planning concept was at hand in the Plan due to a lack of sufficient illustration of positive areas for the erection of wind-energy systems. In particular, it did not have to be complained about that the areas which cannot be profitably used within the meaning of sec. 10 (4) Renewable Energies Act due to sufficient availability of wind were initially excluded when establishing the priority areas for wind energy. Specific reviews of time-consuming investigations are not required in this context. However, sufficient justification and documentation of the consideration decision is not at hand whenever it cannot be gathered from the underlying documents which potential areas were selected for being illustrated as zones of concentration for wind-energy use. The Court reprimands it as being an essential deficiency regarding consideration that the cartographic illustrations which document parts of the drafting of the planning concept were not presented to the Regional Assembly. The lacking comprehensibility of the process of drafting the planning concept and its insufficient documentation refer to the procedure of consideration and also have an influence on the result of consideration so that this results in the entire concentration planning of wind-energy systems being ineffective, for the lack of a conclusive planning concept for the entire region relates to the entire determination.