Since we published our case law update I/2025 (article of 16 May 2025 – German only), 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.
Neighbour protection – Restricted rights to oppose wind turbines in industrial zones
In its decision of 30 June 2025 (7 S 7/25), Berlin-Brandenburg Higher Administrative Court rejected an urgent application filed against a wind turbine permit issued under emissions protection law and clarified key principles regarding neighbour protection. The applicant manages business premises, including a residential building, in a commercial zone located about 550 metres from the permitted turbine in the adjacent industrial zone.
The Higher Administrative Court clarified that the applicant, which provides employees with a company flat, must be regarded as a “neighbour” under emissions protection law. It also found that the permit did not constitute a violation of the applicant’s subjective rights due to noise, vibrations or shadow flicker. As grounds, the Court held that the relevant noise reference values of the Technical Instructions on Noise Abatement (TA Lärm) were observed given the irrelevance and tolerance thresholds set out in No. 3.2.1 (2) and (3), that the shutdown periods stipulated in the permit would prevent unreasonable disturbance from shadow flicker, and that vibrations were not to be expected at a distance of 550 metres.
The Higher Administrative Court rejected the asserted claim to the preservation of the area’s character under section 30(1) Building Code (Baugesetzbuch), noting that such a claim could only be asserted by property owners. As the manager of the business premises, the applicant had only contractual, not ownership rights. The Court also pointed out that the claim, which was based on a reciprocal relationship, did not apply because the business premises were located in a commercial zone and the turbine site in an industrial zone. As commercial operations, wind turbines were generally permitted in industrial zones under section 9 Federal Land Use Ordinance (Baunutzungsverordnung, “BauNVO”). Finally, the Court also found that the requirement of consideration under section 15(1) BauNVO had not been breached, as this only came into play where emissions were actually unreasonable, which was not the case.
Preliminary decisions in emissions protection law – Limited scope for securing priority in the case of competing wind energy projects
In its ruling of 22 July 2025 (7 A 8/25), Berlin-Brandenburg Higher Administrative Court dismissed the action brought by a project developer against the preliminary decision granted to a competitor for four wind turbines and clarified how preliminary decisions for wind turbines relate to permit applications.
The plaintiff intended to build its own wind turbines near those operated by the joined party and was concerned that the preliminary decision granted to its competitor might negatively affect its own permit procedure by creating prior constraints related to structural stability and turbulence.
The Higher Administrative Court first made it clear that developers of wind turbine projects had the right to choose between the conventional preliminary decision pursuant to section 9(1) Federal Emissions Control Act (Bundes-Immisionsschutzgesetz, “BImSchG”) and the simplified preliminary decision under section 9(1a) BImSchG introduced in July 2024. The key point, however, was that a preliminary decision only secured priority for the permit requirements that had been established with final and binding effect in the decision. Aspects considered in the context of the provisional positive overall assessment without a final review – such as, in the case at hand, structural stability and turbulence – did not, in contrast, establish any priority over competitors.
Protection of species – Assessment timeframe and easing of permit requirements under the Wind Energy Area Requirements Act
The Federal Administrative Court’s ruling of 11 September 2025 (7 C 10.24) concerned a lawsuit filed by an officially recognised environmental group contesting the permit for five wind turbines near a bird sanctuary. The joined party had only submitted an application for an easing of permit requirements under the Wind Energy Area Requirements Act (Windenergieflächenbedarfsgesetz, “WindBG”) after the permit was granted in January 2022.
The Federal Administrative Court found the permit to be unlawful and emphasised that a permit issued under emissions protection law constituted a “final decision” within the meaning of section 6(2), sentence 3 WindBG. It did not matter whether the permit had become final and binding (possibly only after court proceedings had been concluded): once it had been granted, the obligation to carry out an environmental impact assessment (EIA) could no longer be waived retroactively.
The Court noted that the contested permit also violated substantive law, as an impact assessment pursuant to section 34(1) Federal Nature Conservation Act (Bundesnaturschutzgesetz, “BNatSchG”) should have been carried out before it was granted. Such an assessment was required if the possibility of the project having a significant negative impact on the bird sanctuary concerned could not be clearly ruled out.
Finally, the Federal Administrative Court rejected the lower court’s interpretation regarding the species protection assessment. When assessing compliance with the prohibition on killing under section 44(1), no. 1 BNatSchG, the Court held, only the natural conditions, including animal populations, at the time of the official decision were relevant. Probable future developments, such as anticipated settlement by a particular species, should not be taken into account. Any changes in circumstances occurring afterward should be dealt with by imposing subsequent conditions or revoking the permit.
Construction planning law – No disproportionate infrastructure requirements for wind turbines in unzoned areas
In a case before North Rhine-Westphalia Higher Administrative Court, a municipality objected to a permit issued under emissions protection law – replacing the requirement of municipal consent – for a wind turbine that was to be accessed via a dirt track owned by the municipality. The project developer had offered to gravel the track at its own expense. The municipality responded with a counter-proposal that involved asphalting the track, paying a monthly usage fee and using a machine to clean the track regularly.
The Court dismissed the municipality’s action in its judgment of 29 September 2025 (22 D 227/14.AK), finding that a standard “appropriate for unzoned areas” was sufficient for privileged projects in such areas. It concluded that a dirt track, and most definitely one that had been gravelled, was generally sufficient for wind turbines, which typically only require two to three maintenance visits a year. There were no grounds for requiring the track to be asphalted. The Court noted that a reasonable offer of infrastructure from the project developer could replace a contractual agreement and that the municipality was obliged to play a constructive role in clarifying whether such an offer was indeed reasonable. Should it fail to do so, it had to allow this to be taken into account to its detriment.
Habitat protection concerns due to a neighbouring bird sanctuary did not affect the outcome either, the Court found, pointing out that there was generally no significant potential for external adverse effects on an area if there was no violation of prohibitions under species protection law.
Permit procedures – Relevant date where application was incomplete and therefore rejected
In its judgment of 30 September 2025 (7 A 15/25), Berlin-Brandenburg Higher Administrative Court ruled on a previously unclarified issue regarding the exclusionary effect of subsequent submission deadlines in permit procedures under emissions protection law. The plaintiff, a wind energy project developer, had applied for a wind turbine permit. The permit authority then asked it to submit an expert report on turbulence by a specified deadline. The plaintiff missed the deadline, and the authority accordingly rejected the application. The plaintiff finally submitted the report six months later and requested that it be taken into account in the objection filed with the authority and subsequent court proceedings.
The Higher Administrative Court dismissed the lawsuit, ruling that the deadline specified in section 20(2), sentence 2 9th Ordinance on the Implementation of the Federal Emissions Control Act (9. Verordnung zur Durchführung des Bundes-Immissionsschutzgesetzes) had exclusionary effect. The Court found that the relevant date by which a full set of documents must have been submitted was the date of the initial decision, not the date of the decision in the objection proceedings or the date of the last court hearing. The rejection of the application could therefore not be set aside by subsequently submitting documents in the objection or court proceedings. The Court noted that this was in line with the provision’s aim of expediting the permit procedure. The provision granted the authority directed discretion, the Court held, and the lawsuit was not an atypical case that could justify disregarding the rejection. Disadvantages arising from delays on the part of the expert had to be borne by the applicant. The applicant could also secure its priority in the permit procedure by submitting a new application with a full set of documents at any time; ending up with lower priority than a competitor was not inevitable.
Summary
The court rulings from the second half of 2025 reflect a growing commitment to accelerating wind energy expansion by rejecting disproportionate requirements in connection with neighbour protection and infrastructure development, for example. At the same time, the courts have clarified procedural requirements – e.g. with regard to preliminary decisions or the subsequent submission of documents – as well as the relevant assessment timeframes in permit procedures and species protection. An especially important development is the first explicit confirmation by a court that the deadline for the subsequent submission of documents has exclusionary effect – so documents submitted after the deadline cannot be used to set aside a rejection decision in objection or court proceedings.
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