By decision dated April 13, 2011 (docket no. 12 ME 8/11) the Higher Administrative Court of Lüneburg confirmed the first-instance decision of the Administrative Court of Hanover by decision dated December 21, 2010 (docket no. 12 B 3465/10, Bird & Bird reported on this in the February 2011 issue of the Renewable Energies Newsletter): The economic interest of the constructor and operator (company) of a wind-energy system ("WES") of beginning to construct and take the wind-energy system into operation despite an action filed by the Federal Republic of Germany / Military District Administration Office (Wehrbereichsverwaltung) against the permit under immission-protection law granted to the company (interest in implementation) outweighs the interest of the Military District Administration Office in waiting for the outcome of the proceedings first (interest in a stay). For the action against the permit under immission-protection law has a high likelihood of being unsuccessful. This is why the immediate enforcement of the permit under immission-protection law remains ordered by request of the company despite the general staying effect of the action aimed against this. The appeal aimed against the decision of the Administrative Court Hanover is not successful and is dismissed.
As regards the question of whether the economic interest of the constructor and operator of a wind-energy system in being able to make use of the permit under immission-protection law before the proceedings are concluded (interest in implementation) outweighs the interest in a stay of the Military District Administration Office which filed the action against the permit, it is decisive whether the plaintiff is able to establish in a plausible and comprehensive manner that it is precisely the wind-energy system in dispute which results in a relevant loss of coverage and thus an impairment of the radar system's operability as a whole.
By generally shifting privileged undertakings – and thus the planned wind-energy system – to the outer zone, the legislator itself made a planning decision for the benefit of such undertakings, thus also accepting negative interference with public interests in individual cases. This requires a weighing between the public interests affected in the respective case and the undertaking, whereas the privileging weighs for the latter's benefit.
That weighing will not have an outcome to the disadvantage of the privileged undertaking if a public interest (here: the operability of radar systems within the meaning of sec. 35 (3) sentence 1 no. 8 Federal Building Code) is not affected negatively.
The question of the operability of radar systems within the meaning of sec. 35 (3) sentence 1 no. 8 Federal Building Code is not concerned with whether wind-energy systems, being objects which protrude into the airspace, can generally result in shading and the failure to discover flying objects to be observed behind the wind-energy systems. Rather, it is decisive whether the wind-energy system in dispute specifically causes such an impairment of the radar system's operability. To the extent to which it is possible to calculate the actual influence of the radar system and to which the Military District Administration Office does not submit such calculation in the appellate proceedings, this possibility cannot cause an assessment of the chances of success different from the one already found by the Administrative Court of Hanover.
It does not have to be determined whether the provisional decision under immission-protection law already made a final decision regarding impairment, whether it became legally invalid due to an opposition, or whether the admissibility under planning law of the undertaking is not out of the range of judicial review for other reasons. For at least the alternative reasoning applied by the Administrative Court - that the impairment of the operability of the radar system was not established in a substantiated manner - stands firm.