Building law: New regulatory mechanism for onshore wind energy

The ambitious goal of the EEG 2023 is to increase the share of renewable energy to 80 per cent by 2030. To achieve this, two per cent of Germany's land area must be used for wind energy. Currently, only 0.8 per cent of Germany's territory is earmarked for this purpose. The installed capacity has so far fallen far short of the targets. Various amendments to the law are now aimed at accelerating the expansion of wind energy and simplifying approval procedures.

Legal situation before 1 February 2023

Prior to 01/02/2023, wind turbines were generally permitted as privileged sites in the open countryside. However, there were various hurdles, such as species protection, the planning reservation and nature conservation concerns, which made approval difficult. The planning reservation allowed the planning authorities to control the siting of wind turbines in remote areas and to prevent them from being sited outside concentration zones.

Legal situation since 1 February 023

The legislator identified the lack of available land as one of the main obstacles to the expansion of onshore wind energy. The new German Wind Energy Act (WindBG) sets binding area targets (so-called area contribution values) for the individual federal states. The law divides the target of making two per cent of the federal territory available for wind energy among the federal states. The area targets must be reached by 31 December 2032.

As soon as a federal state has reached its area targets, wind turbines outside the wind energy areas are no longer privileged, but are subject to the more stringent conditions of § 35 (2) BauGB. If a federal state fails to meet its area targets, wind turbines remain privileged in the entire outer area and the planning reservation, which was previously the biggest hurdle to approval, no longer applies. The legislator achieved these legal effects in particular through a comprehensive amendment of § 249 BauGB.

Further amendments to the German Building Code (BauGB)

On 4 January 2008, the Act for the Immediate Improvement of the Framework Conditions for Renewable Energies in Urban Development Law was passed. It introduces further amendments to the BauGB to promote the expansion of renewable energies, in particular wind energy:

• Privileging of hydrogen projects in connection with wind turbines.
  According to § 249a BauGB, a new privileged status has been created that favours projects for the production or storage of hydrogen that are spatially and functionally connected to wind energy plants. This makes it possible to use surplus electricity, which does not have to be switched off in the event of grid bottlenecks, for the production of green hydrogen at the location of the wind power plant.
• Expanding the use of post-mining areas for renewable energies
  The provisions of the German Offshore Wind Energy Act have been supplemented by an ordinance empowering the federal states in § 249b BauGB. This is intended to open up so-called post-mining areas, especially after the end of lignite mining, for the construction of renewable energy plants. These areas are considered to be low-conflict due to their past pollution and usually have a good connection to the energy networks.
• Clarification on the visual impact of wind turbines
  The amendment of the BauGB also includes a clarification in § 249 para. 10 BauGB. According to this, the unnamed public interest, which is derived from the requirement to take account of planning considerations, is no longer opposed to the visual impact of the erection of wind turbines if the distance to the nearest residential area is at least twice the height of the wind turbine.

Impact of new regulations

Overall, the recently enacted changes in the law indicate a certain trend reversal in favour of wind energy. It remains to be seen whether the Länder will make use of their power to issue ordinances. The Länder can incorporate the changes in the law directly into their political efforts to increase the use of renewable energies.

The power to issue ordinances and the definition of binding area targets will enable more targeted planning and implementation of wind energy projects. It also favours the production and storage of green hydrogen, which many see as an ideal substitute for fossil fuels. In the future, planning authorities will have a greater interest in permitting wind energy in their catchment areas and designating the necessary land.

For more information on the new regulatory mechanism for onshore wind, download our whitepaper.