Since we published our case law update II/2025 (article of 3 March 2026), Germany’s administrative courts have once again been busy issuing numerous decisions on onshore wind energy. This update will cover some of the key rulings.
Fulfilment of local wind energy targets is contestable
In a decision of 6 February 2026 (11 C 205/25.T), the Higher Administrative Court of Hesse issued a landmark ruling in connection with local wind energy targets – specifically, the target percentages of each federal state’s area to be used for wind energy laid down in section 5(2) Wind Energy Area Requirements Act (Windenergieflächenbedarfsgesetz, “WindBG”). A declaration that such percentage has been reached constitutes a declaratory administrative act, the court ruled, which means it can be contested in an avoidance action (Anfechtungsklage). In the case at hand, a municipal wind energy company objected to decisions by two regional planning bodies (Regionalversammlung Südhessen and Regionalverband FrankfurtRheinMain) declaring that the phase 1 target percentage had been met.
The Higher Administrative Court found that such declaration has direct external legal effects and changes the legal regime for construction. After such declaration, the court confirmed, wind turbines in unzoned areas (Außenbereich) lose their privileged status and can only retain approval as “other projects” subject to strict requirements (sections 249(2), 35(1), no. 5, 35(2) Building Code (Baugesetzbuch, “BauGB”)). The court also commented on how the State of Hesse, with its three planning regions, has implemented such target percent-ages. Under Hesse’s energy law, each regional plan must define priority areas. This effectively requires each planning region to make the same percentage of its area available for wind energy, namely 1.8%. Hesse law therefore did not provide for equalisation between the planning regions, it ruled.
The judgment has considerable practical relevance as it will allow project developers to challenge declarations that such local wind energy targets have been met and thus contest the removal of privileged status from sites in unzoned areas..
Protection for neighbouring landowners – limited third-party avoidance rights
In its judgment of 20 January 2026 (case 22 D 116/25.AK), Münster Higher Administrative Court dismissed an action brought by a neighbouring landowner against a wind turbine permit issued under emissions control law, thereby reaffirming the narrow limits of protection available to neighbouring landowners through third-party avoidance actions (Drittanfechtungsklage). The plaintiff, who ran a riding centre and boarding stable in an unzoned area, raised concerns in particular about adverse effects from noise, infrasound, fire hazards and visual intrusion.
The court first clarified that third-party avoidance actions can only succeed where provisions intended to pro-tect third parties are infringed and further concluded that the duty of care in section 5(1), no. 2 Federal Emis-sions Control Act (Bundes-Immissionsschutzgesetz, “BImSchG”) was not such a provision. With regard to noise, it ruled that the limits set by the Technical Instructions on Noise Abatement (TA Lärm) were complied with since the projected values were well below the applicable nighttime limit of 45 dB(A). Based on current scientific evidence, infrasound from wind turbines was also below the perception threshold and generally did not pose a risk to health.
The court also dismissed concerns regarding fire safety, holding that the plaintiff could not claim protection from every conceivable risk – and still less demand zero risk – but only from specific risks. As regards a visual-ly oppressive effect, the court held this to be generally precluded under section 249(10) BauGB where the re-quired distance was maintained. The court also noted that any reduction in the value of the property was only relevant if it resulted from the unreasonable impairment of the plaintiff’s ability to use the property.
Regarding alleged risks from microparticles and PFAS, the court found that, based on current scientific evi-dence, there was no indication that microparticle abrasion from rotor blades during normal wind turbine opera-tion impaired the health of nearby residents or contaminated land or soil. The same applied to PFAS, with the court questioning whether the parts of turbines susceptible to erosion contain these substances at all. These comments by the court are relevant in practice as objections to microplastics and PFAS are increasingly being raised in third-party avoidance actions against wind turbines.
Preliminary decisions – obligation to carry out environmental impact assessment even in simpli-fied procedure under section 9(1a) BImSchG
Münster Higher Administrative Court held in its judgment of 16 April 2026 (22 D 81/25.AK) that a simplified preliminary decision under section 9(1a) BImSchG does not eliminate the obligation to carry out an environ-mental impact assessment (“EIA”) in cases where such decision conclusively determines environmental issues. In this case, a municipality had filed a lawsuit against a preliminary decision for four wind turbines forming part of a project with a total of 20 turbines.
The court found the 20 wind turbines to constitute cumulative projects within the meaning of section 10(4) Envi-ronmental Impact Assessment Act (Umweltvertraglichkeitsprüfungsgesetz, “UVPG”) and subject to an EIA obligation pursuant to section 12(3), sentence 1, no. 1 UVPG. According to the court, section 9(1a), sen-tence 3 BImSchG, which stipulates that there is no requirement for a preliminary EIA on a project as a whole when issuing a preliminary decision, does not eliminate the obligation to carry out an EIA on the impacts cov-ered by such preliminary decision (here, noise and shadow impacts).
In the opinion of the court, the EIA screening subsequently carried out by the defendant did not meet the re-quirements of section 7 UVPG since the threshold of significant adverse effects on the environment should not be equated with the threshold of harmful environmental impacts. An EIA should be carried out as soon as the impacts approach the limit values. The judgment did not annul the preliminary decision but declared it unlawful and unenforceable; the defect could be cured through supplementary proceedings.
The decision clarifies the scope of the EIA obligation in preliminary decisions under section 9(1a) BImSchG and highlights the layered approach to EIAs: No preliminary EIA is required, but an EIA must be carried out for the environmental impacts addressed by the preliminary decision.
Minimum distance requirements – Bavaria abolishes distance requirements for wind turbines in unzoned areas
In its ruling of 5 March 2026 (22 A 24.40029), the Bavarian Higher Administrative Court dismissed an action brought by a neighbouring landowner against the approval of two wind turbines, for the first time addressing the revised legal framework governing minimum distance requirements in Bavaria. The plaintiff had raised con-cerns about potential impacts on her fishponds arising from construction activities and shadow flicker, as well as a violation of distance requirements.
The Higher Administrative Court held that, following the amendment to section 6(1) Bavarian Building Code (Bayerische Bauordnung, “BayBO”) effective 1 January 2025, wind turbines located in unzoned areas are no longer required to maintain a minimum distance to neighbouring plots and buildings. With the introduction of section 6(1), sentence 3, point (2) BayBO, the legislature had expressly exempted wind turbines in unzoned areas from the obligation to maintain such minimum distances. The legislative intent indicated, the court held, that even in the limited number of cases in which distance requirements could not be met, no derogation was considered necessary. With regard to the alleged adverse effects on the fishponds, the court confirmed the findings of a hydrogeological expert report, concluding that the turbine sites were located outside the rele-vant surface water catchment areas and that no adverse impacts on the pond systems were to be expected.
Appropriate assessment – incomplete evaluation of impacts on special protection areas
In its decision of 26 March 2026 (7 B 775/25.AK), the Higher Administrative Court of North Rhine-Westphalia rejected an environmental association’s application to restore the suspensive effect of its action against a wind turbine permit but expressed serious doubts about the completeness of the appropriate assessment (FFH compatibility assessment). According to the court, the permitting authority failed to fully assess the impacts on the adjacent special protection area for birds, in particular with regard to the black stork. Notably, parts of the special protection area exposed to noise levels exceeding 47 dB(A) were generally considered suitable habitat for the species. If the project were implemented, these areas would likely become unsuitable for the black stork due to nighttime noise disturbance. The court also emphasised that cumulative effects with neighbouring de-velopment plans must be taken into account in the appropriate assessment. While the final determination was reserved for the main proceedings, the court held that, in the interim proceedings, the public interest in accel-erating the expansion of renewable energy prevailed.
Summary
Case law in the first half of 2026 shows a further development of the legal framework for onshore wind energy in several key respects. For the first time, the courts have clarified that a determination that the wind energy targets under the WindBG have been met constitutes an appealable administrative act, opening up new ave-nues of legal protection for project developers. Regarding protection for neighbouring landowners, the courts continue to follow a restrictive approach: Avoidance actions typically fail due to stringent substantiation re-quirements. Based on the current state of scientific knowledge, neither infrasound nor objections relating to microparticles or PFAS emissions from rotor blade abrasion are considered capable of establishing a violation of individual rights. The case law also further clarifies the requirements for EIAs in the context of preliminary decisions under section 9(1a) BImSchG, emphasising the layered approach to EIAs. The clarification that wind turbines in unzoned areas in Bavaria have no longer been subject to minimum distance requirements since 2025 also effectively removes another regulatory hurdle. At the same time, however, the courts stress that appropriate assessments must comprehensively address all potential impacts on special protection areas for birds.
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