1 A 1 K 222/00.KO | Oberverwaltungsgericht Rheinland-Pfalz JUDGEMENT ON BEHALF OF THE PEOPLE Delivered on: 07.08.2003 In the administrative cause of action and planning permission has 1.Senat, the Higher Administrative Court Rheinland-Pfalz in Koblenz because the hearing of 24 July 2003, have participated in the Chief Judge of the High Administrative Court Nickenig Judge at the Higher Administrative Court Kappes-Olzien judge of the High Administrative Court Günther volunteer judge kfm. Employees catch volunteer judge banker Tremmel hereby: Under the amendment because of the oral hearing on 6 November 2001 judgment ruling of the Administrative Court of Koblenz Bauschein the defendant of 11 November 1997 and the appeal decision the District Legal Affairs Committee of the Westerwald district of 20 December 1999 repealed. The defendant has to bear the costs of litigation and on appeal. The concurrence of an agent for the pre by the applicant is declared to be necessary. The verdict is due to the cost provisionally enforceable. The defendant may seek enforcement by security in the amount of costs to be awarded to avert, if not the applicant ensure security before the same amount. The revision is not approved. event The applicant in against one of the parties summoned building inspection approval granted for the construction of two wind turbines. He is the owner of the planned to open local situation of ... in the High Westerwald associated with a residential house developed land ... Parcel ... . With the 11th Bauschein November 1997 allowed the defendant to a community builder, from whose ranks later joined as a party has emerged on the outside the district ... situated property ... to build two wind turbines. There are two systems of type Fuhrländer 250 with a total height of 56.25 m, a rotor diameter of 29.5 m and a maximum Power of 250 kW. The location of the plant is located northeast of the built local situation of ... at a height of 620 m above sea level . According to the TÜV Rheinland, the sound power level be the next type of plant used 98 dB (A). Not far from the approved site are in slightly less distance to the local situation - two other wind turbines of the same type, the facilities ... may According to the provisions of paragraph 18 of the side of the Bauschein the two wind turbines of the parties summoned outgoing noise level below inclusion of the two existing systems ... the area in which not to exceed the immission by night 40 dB (A) on the plot 135 of the district ... . Lead was before granting planning permission an immission of TÜV Rheinland of 19 April 1996 created. Those on the neighboring property the plaintiff ... as a result of the four plants of the parties summoned and the operator ... an assessment level of 40 dB (A) can be expected. The distance between the house of the plaintiff and the wind turbines of the parties summoned is about 440 m and 550 m, while the systems ... about 360 m and 450 m from the house the applicant away. In contrast was the TÜV report of 19 April 1996 yet another location of the plant of intervening with distances of about 430 m and 440 m from the residence of the applicant based. appeal against the planning permission, the applicant contradiction. He justified this with unreasonable noise emanating from the wind turbines . Following the dismissal of the protest by opposition decision of the District Law Committee of 20 December 1999, the plaintiff brought an action in time that the Administrative Court to obtain a noise control opinion by the Court to the hearing of 6 November 2001 dismissed mainly on the following grounds: The contested Building permit violated the plaintiff is not in his rights. It is not contrary to the requirement of consideration, since they do not permit the plaintiff unreasonable noise pollution. First, the is maintained by the "Guidelines for assessing the admissibility of wind turbines ''(MinBI 1999, 148) compared to a general residential area to be maintained a minimum distance of 325 meters. Second, of intervening in the planning permission has been given that at a their plants closer to receiver point under consideration the existing wind turbines at night immission of 40 dB (A) is not exceeded should. This value could be also stop at the residence of the applicant. From the expert's opinion, Ing ... of 8 June 2001 is clear that the plaintiff will by the investments of the parties summoned not significantly affected. As far as the experts in two measurements was calculated rating level of more than 40 dB (A), have ruled Northeast winds fueling Mitwindbedingungen were given. Such conditions were allowed to, however, as the experts also have found only very rarely. The then adjusting excess of the emission values have the applicant accordingly competition under para 7.2 of the TA in 1998 to accept in principle noise. Against the wind, by contrast, according to the opinion assumed that the benchmark will observed by 40 dB (A). Comprehensible and coherent are the findings of the expert brought in to supplement approach because of the impulsiveness of the noise emanating from the installations. This is not to increase further. directed against this decision, the Senate approved the appointment of the plaintiff. This is largely due as follows: The wind turbines of the parties summoned could be the relevant exposure limit of 40 dB (A) at night on his property not conditions so that the building permit had been issued for the false . The building permit was based on an inadequate prediction of the. plants outgoing noise levels. The reports of the TÜV Rheinland of 14 April and 25 September 1996 had a number of shortcomings so that they could not form the basis for the contested building permit. The opinion of the expert Ing ... was clear from that the permitted emission limits could not be met at his estate . That would have given accurate Geräuschimmissionsprognose must also be determined. If the exposure limit Mitwindbedingungen of 40 dB (A) would be significantly exceeded. although it is also against the wind to level crossings. In addition, the experts have too small surcharge due of impulsive account of the disturbing noise. This would rightly 6 dB (A). The so-called discount measurement of 3 dB (A) should not come to the approach as it presently does not go to monitoring measurement. In addition, the Administrative Court could not be followed is that the excesses of the immission through the facilities of the parties summoned as rare events in terms of TA are to be considered noise. But it lacked the one necessary to the findings of fact. Second, it is a transgression of the immission just not part of the building permit. Their legality was not particular to derive from the additional stipulation No. 18. This mere target do not provide adequate protection against undue interference by noise exposure. The show, not least the fact that the defendant's assets after presentation of report of 8 have not closed down June 2001. It was not set should be tested when and by whom the actual emissions . Also available to the stall-controlled systems of the parties summoned were not accompanied on the possibility of automatic switch-off in conditions that that a limit is exceeded the permissible noise . The applicant claims that using a modification of the First Instance Court building permit from the 11th November 1997 in the version of the notification of 20 repealed in December 1999th The defendant contends, dismissed the appeal. He is considers that the contested building permit was not legally objectionable . In it was determined that the immission of 40 dB (A) at night should not be exceeded. The opinion of the expert Ing ... show that this value is largely is respected. In the rare excesses it constitutes are events in the sense of 7.2 TA noise, unreasonable to the applicant were formed and no violation of the commandment considerate. speak Moreover, the evidence suggests that the non-planned local situation of ... bauplanung not legally classified as a general residential area, but as the village area was . The Third party shall not apply. She shares the view of the defendant. is For further details of the property and the dispute, the court record with between the parties exchanged pleadings, on the building and conflict acts of the defendant (4 issues) and on the court record of Method 1 L 454 / 98.KO the Koblenz Administrative Court referred. These documents were the subject of the hearing. Grounds The appointment of the applicant is admissible and justified. The contested Bauschein to build two wind turbines and the thereunder appeal decision of the District Legal Affairs are illegal and violate the plaintiff in his neighboring rights, so that the not have administrative court may dismiss the action. opposite the building permit, the plaintiff can rely on a breach of contained in § 35 para 3 sentence 1 No. 3 Building Code, for him adjacent protective order of the consideration. This is infringed because the approved wind turbines with their noise pollution on the property of the plaintiff harmful environmental effects Under this provision, and § § 3 para 1, 22 para 1 sentence 1 BImSchG cause. In that regard, sets the Federal Pollution Control Act, the limit the acceptability of environmental impacts for neighbors and thus the measure of all due consideration for the right to build generally fixed (see Federal Administrative Court, Judgement of 30 September 1983, NVwZ 1984, 509, 510). In answering the question whether the requirements of the Federal Clean Air Act in a particular case is satisfied to find in the administrative jurisdiction generally prevailing opinion in the Sixth General Administrative Regulation on the Federal lmmissionsschutzgesetz (Technical Instructions for protection against noise-TA noise) of 26 August 1998 (GMBI p. 503) set guidelines, assessment regulations, measurement and calculation methods for used the assessment of wind turbines as a guide (cf. OVG Lüneburg, decision of 18 December 1998, NVwZ 1999 444; OVG Greifswald, decision of 8 March 1999, NVwZ 1999, 1238; BayVGH, Decision of 24 June 2002-26 CS 02 636 juris--; OVG Münster, Judgement of 18 November 2002 - 7 A 2127/00 - ZfBR 2003 , 275). This view joined the Senate. It does not matter whether the respective systems a permit under the Federal Pollution Control Act need or not. this case there are no objections to the TA noise in 1998 to use as a guide in assessing the reasonableness authorized by the wind turbines outgoing environmental impacts. Although these rules is only on 1 November 1998 entered into force during the contested Bauschein of 11 Dated November 1997. First, however, correspond to the emission values under No. 6.1 in 1998 to those of the TA TA Noise Noise 1968 (see Kutscheidt, NVwZ 1999, 577, 578) and was also the noise TA 1968, which iS only for subject to licensing in § 4 BImSchG for validity (unlike now No. 1 sentence 2 TA noise 1998), the supreme court Court already recognized that they are used as a guide for assessing the reasonableness of not requiring a permit systems iS of § 22 BImSchG outgoing noise levels could ( see Federal Administrative Court, Judgement of 30 April 1992, NJW 1992, 2779; decisions of 20 January 1989, NVwZ 1989, 666 and September 22, 1998, BRS 60 no 85). Second, and most importantly, over the objection of the plaintiff against the building permit until 20 December 1999 and thus after the entry into force of the TA noise been decided 1998th On their regulations would consequently been able to orient the reviewing authority in its decision on the opposition of the applicant (see also § 79 para 1, No. 1 VwGO). With the order for immediate execution of 16 January 1998 was joined as a party to the impugned systems even before the onset of establish legal force of the building permit. This possibility has but ultimately they made at their own risk of use. a claim that is not in the evaluation of facilities in the vicinity of the environmental impacts caused to seek the TA 1998 noise or program to review the legality of contested by the plaintiff building permit will be restricted in any way , it does not follow. Accordingly, the decision of the Administrative Court , of the prescribed noise assessment, the TA 1998 to be observed (see the proof Decision of 29 May 2000, f. 186 of the court record) is not objectionable. As for the reasonableness of the risk that the approved wind turbines noise levels for the plaintiff, it is true must agree with the starting point of the lower court that such emissions for a general residential area situated in a residential house regularly then are not ruthless when they set out in the TA noise emission values - 55 dB (A) daytime and 40 dB (A) at night - do not exceed. the Administrative Court can not be followed in assessing , on the basis of certain, closer in the contested verdict assumptions set out clear from the expert's opinion Ing ... , 08.06.2001, that the applicant is not covered by the two systems the parties summoned significantly affected. Especially can not be the TA noise para 7.2 1998 view expressed consent . Rather, it follows from the expert report in connection with the explanations of this, experts at the oral hearing before the Senate 15 May has been 2003, that the impugned plants produce together with the definitive systems Shepherd approved on the property of the plaintiff to the night time noise levels higher than this is to be expected. It is assumed that relevant to the property of the plaintiff is an immission which in any case is not much higher than 40 dB (A). This corresponds the value for a general residential area in accordance with No. 6.1, 1 Buchst. d TA noise that can possibly be in view of the remoteness of the site for outdoor toward something more ambitious (cf. OVG Münster, Decision of 13 July 1998, BRS 60 no 193). After the contents of the entire administrative and court records, in particular by the defendant to the Enlightenment order of 15 May 2003 through documents submitted and in accordance with the remarks of the parties character to the area in the two hearings is set to conviction of the Senate that the residential property of the plaintiff a de facto general residential area - and not a factual Village or mixed - is a member. Anyway, the north of the means road, this area of the local situation of Willingen, which for the bauplanung legal classification of the property of the plaintiff determines has the characteristics of a general residential area the sense of § to 4 BauNVO because there only dwellings with ancillary facilities i. S. § 14 of the Land Use Ordinance and isolated according to § 4 para 2 No. 2 or Section 3 No. 2 Land Use Ordinance are to be found permissible uses. Although not forget, is that the existing building stock is in their appearance mainly characterized by the previously dominant land and Forestry, was for the land in question range of Willingen, the presence of economic agencies or forestry in the sense of § 5 para 1 sentence 1 and para 2 No 1 BauNVO are not documented. If such economic agencies have previously passed once, they will be operated in any case for such a long time not that the environment is no longer characterized in terms of a village area is . Some minor agricultural activities, the of the residential land may yet be made, which are classified as de facto general not preclude residential area. Nor can in the development plan "Herman Hainer Street" in small extent remaining agricultural uses (see the pictures 29 to 34 of the documentation received by the defendant) the association of property of the plaintiff to prevent a de facto general residential , which already follows from the fact that the said development plan after giving the defendant in turn, identifies a general residential area. The particular of the parties summoned mentioned businesses (wood-processing company Coffin Factory -, Locksmith, tire store and sawmill) are too far from the here relevant northern urban area of Willingen in order to stand in its classification as a de facto general residential area. This can be particularly are the entries in which the applicant submitted Plan (pages 521, the court file) are taken, the validity of which no objections were received, no concerns are evident. The information gathered by the administrative court expert's opinion of the experts Ing ... of 8 June 2001 be taken, however, that the impugned wind turbines of the parties summoned along with the facilities of the operator Shepherd, measured on the character of the relevant environment as a de facto general residential area, causing the night-time is too high noise. This is in accordance with paragraph 4.2 Buchst. c noise on the TA from to bring all systems together resulting load and not isolated to those caused by the investments of the parties summoned emissions, and the conditions under No 3.2.1 paragraph 2 sentence 2 TA noise are not related to the investments of the parties summoned met. In the expert opinion presented plausible and convincing that has resulted in two by the experts in May 2001 measurements performed significantly exceeded immission of 40 dB (A). There are for one hour of the night rating level of 48.5 dB (A) and 43 dB (A) was determined. It was projected in the second measurement of the observed rating level of 41.8 dB (A) in imaging for complaints not raise way to 43 dB (A), because of either space of the operator Shepherd on measurement day not been in operation is. The expert is not deducted in determining the rating level to law the so-called measuring reduction in the monitoring measurements in accordance with point 6.9 TA noise. In the measurements in its assessment are in fact not monitoring measurements in the sense of measures of system monitoring. Rather, they served to the courts to assess the legality of the contested to allow planning permission. Are you done so in a broader sense in the approval process and not in supervising a final approved facility. The approval process is the measurement noise reduction in accordance with point 6.9, TA, however, not be set ( see Order of the Senate of 16 September 2002 -1 B 11226/02.0VG - Rev p. 8 with further references). The treatment of any noise problem from the experts, especially during the first measurement gives no reason for concern as well. has been made in proper way, a background noise correction. The expert is also in the Senate on 15 May 2003 following a verbal explained believes that wind caused by extraneous noise to wind turbines in principle not be classified as permanently prevailing background noise under the control of the No. 3.2.1 para 5 TA noise (as well OVG Münster, Judgement of 18 November 2002, ZfBR 2003, 275, 279). The award is awarded Impulsiveness (K) according to A.2.5.3 TA noise from the experts is not objectionable in principle. When he has made his measurements , the expert has determined that increasing and decreasing impact noises been well perceived by the rotor blades (see report, p. 31 and 33). The Senate therefore sees no reason to doubt the permission of the impulse hammer. After the supplementary versions of the expert of 2 July 2001 (pp. 262 f. of the court record) and at the hearing of 15 May 2003, it seems plausible that such a surcharge is to award in this case, while it follows that the momentum against the award to the claimant in is not rated to 6 dB (A). the outcome of the assessment that in stronger winds from the northeast, even though that is by the Administrative Tribunal the assessment applicable predetermined speed of 10 m / s at 10 m (see point 2.2 of the Environmental Agency of North Rhine-Westphalia, published materials No. 63 wind turbines and pollution control -.) or even the manufacturer for here issue in wind turbine given rated wind speed of 15 m / s have not yet reached on the property of the plaintiff appear unreasonable noise levels can not be recalling on the system introduced in para 7.2 TA noise its importance denied . to this rule is that the operator of a plant under the Pollution Control Law lying enable this to a strictly limited to use scale-intensive or different from those in normal operation, without the plant because of the it is inadmissible to expected higher immission. From these reasons, under certain conditions in the approval process for the plant to exceed the emission values are allowed . In contrast, the present case established benchmark exceedances place in north-east wind, however, as events in the normal operation of the plant and will produce No. 7.2 TA noise is not relevant (see Kutscheidt, NVwZ 1999, 577, 579). Can a building permit as here, the operation of a wind turbine fully at all actually occurring effects of wind and arising during the course of this operation-related violations of the emission limit, it will therefore not be considered, such as with view of the rarity of such events, para 7.2 Recourse should TA noise as a justification (see OVG Münster, Judgement of 18 November 2002, ZfBR 2003, 275, 278). According to information obtained by intelligence experts is assumed that compliance with the present relevant immission at night from at most about 40 dB (A) not on the property of the plaintiff secured. Relevant for assessing the full extent hour of the night with the highest rating level, to which that system is contributing relevant (No. 6.4 Section 3 TA noise). The review shows that progress has already been in winds from the northeast, reaching the not just mentioned requirements for wind speed, rating level of well over 40 dB (A). The regular operation of the facilities aim of intervening, however, especially relative to the utilization from high wind speeds. The systems are to a nominal wind speed of 15 m / s and a cut-out wind of 25 m / s aligned as by the refer applicants to plant description provided by the manufacturer (pages 496 of court record) is. Thus, in north-east wind occur even higher noise levels, as it has been found by the expert in May 2001. This is evident especially fact that the plants are stall-controlled, and the emission levels of such systems increases beyond the rated power, the first here in a wind of 15 m / s is achieved, even more (see point . 1.1 of the Environmental Agency of North Rhine-Westphalia, published materials No. 63- wind turbines and pollution control). Moreover, according to the findings be expected of them experts that the immission (A) of 40 dB is not kept on the premises of the plaintiff even with strong southwest wind. For its measurement, 16-17. May 2001 is the expert but for an average wind speed of 8 m / s at 10 m to an overall rating level for the four plants of 38 dB (A) passes. According to Parliament's conversion to a wind speed of 10 m / s is the overall level, however, already 41 dB (A) (see p. 34 f. of the report, the dependence of the sound power level of wind turbines by an increase in wind speed see also the materials No. 63 of the Environmental Agency of North Rhine-Westphalia, supra). has a consequence, the experts at the hearing of 15 May 2003 to consult again expressly confirmed that he to exceed the emission values of 40 dB (A) can not exclude at strong westerly winds. The satisfaction of the Senate is result of the evaluation determined instead that the value not only with stronger northeast winds, but also with west winds in the area to exceed the designated facilities for the nominal wind speed significantly . This conclusion is not doubtful that the "Guidelines for the assessment the admissibility of wind turbines on 18 February 1999 (MinBI p. 148) at acoustic power levels of the entire system of 98 dB (A) point. V 9 a minimum distance to a general residential area of 325 m provide, and the annexes of the parties summoned 440 and 550 m from the house of the plaintiff from the one is present. - After to the manufacturer - the sound power level of an individual plant Fuhrländer FL 250 98 dB (A) - to the approximate calculation of experts (see p. 26 of report) 99 dB (A) - while the sound power level of the entire system, so all four forces acting on the land the plaintiff wind turbines, yet after the "instructions" contained formula (ibid. p. 155) should be calculated. have the other latter actually, that (among others) due to the accumulation of systems deviations from the then listed minimum distances may be required. The contested construction permit, which allows the parties summoned the establishment and use of two charged after all of the plaintiff against the considerate bid offending wind turbines is not therefore lawful because they point. 18 of its subsidiary regulations even the maintenance of a immission in the noisiest hour of the night of 40 d8 (A) on the plot ordering 135 of the district Willingen by the totality of all the neighboring wind turbines . Due to the topographic conditions may be adopted . That the immission of 40 dB (A) on the grounds of the plaintiff is respected, if not exceeded on the aforementioned parcel. According to the results of the assessment but it can not just assume that the latter is the case . Rather, all the indications are that the pattern found by the expert exceeded immission occur from 40 dB (A) at the wind conditions on the somewhat closer to the wind turbines located parcel would be 135. also sets out the planning permission be no provision that would allow compliance with the stated under paragraph 18 of the additional stipulation requirement across the spectrum normal operation of the equipment back and make sure. There also is nothing to suggest that such arrangements could be made , especially since joined as a party has declared that the subsequent installation of an appropriate control in the impugned systems technically was possible. Moreover, can the requirement that a certain target must be maintained at a Immissionsobjekt in itself ensure generally not satisfied that there harmful Umweiteinwirkungen be avoided by a wind turbine and is therefore inappropriate in cases of this kind to ensure a sufficient neighbor protection (see OVG Münster, decisions of 13 July 1998, BRS 60 number 193 and dated August 6, 2002, RdL 2003, 107, 108, Judgement of 18 November 2002 ZfBR 2003, 275, 279, see also BayVGH, Judgement of 18 July 2002, UPR 2003, 78 - to a spa complex emissions -). etc. This follows from the fact that the immission for the end of measurement check to see if are adhered to in a permit for a wind turbine specified pollution limits, considerable difficulties prepared (cf. OVG Münster, Judgement of 18 November 2002, cited above, so far not published in ZfBR 2003, 275; s . also p. 15 to 17 of the expert's opinion Ing ... 8 June 2001 and whose opinion of 1 February 2001, f. 206 et seq of the court record). It speaks so much for the issuance of a building permit for a wind turbine lock in a sound power level, the easier-to- monitored compliance to ensure that the Vicinity of the plant will not occur adverse environmental impacts due to noise exposure. This in turn score - as the basis for building permit - the creation of a forecast over the expected rated power of the system recorded immission , only if to meet this acceptability threshold, the building permit to issue (detail on the requirements for such a forecast : OVG Münster , Judgement of 18 November 2002, supra). present case within the framework of the approval process in the form of report of the TUV Rheinland of 19 April 1996 immission given, that the conclusion reached, the relevant immission of 40 dB (A) would be kept on the land adjacent to the applicant in the operation all four plants. These reports, however, compared for consideration by the expert Ing Pies different conditions (other immission, somewhat modified location of the plants of the parties summoned) and assumptions (eg, a reference wind speed of 8 m / s at 10 m) based, and he is still based on the TA noise been developed 1968th Overall, the Senate appears to be content therefore not such as the findings of the expert Ing to ... in question. Regardless of the question, whether the TÜV report introduced in sufficient manner to the building permit process and contents of the issuance of building permit adequate has been implemented is, therefore, must be concluded that the approved wind turbines on the property of the plaintiff harmful environmental impacts in the form of undue noise exposure cause, and the contested construction permit must be set aside. A restricted to a partial withdrawal of the two approved systems the building permit will not be granted. This would fail to recognize that it is for the two wind turbines a single Subject is. The parties summoned, however, it remains free to file a (new) planning application by the respondent, which relates only to one of the two impugned plants. Which would eventually entering the legal effect of this ruling does not preclude because of it, only the building permit of 11 November 1997 and is captured there approving construction projects Asked . The costs are based on § 154 para 1 Code of Administrative Procedure, the decision 708, about the provisional execution of the Court because of the cost to § § 167 Code of Administrative Procedure, No. 10, 711 ZPO. According to § 162 para 2 sentence 2 VwGO is the recourse to a representative for the pre-declared by the plaintiff to be necessary. The revision is not admitted because there are reasons not to in § 132 para 2 VwGO kind described. right of appeal .... decision The value of the subject matter is for the appeal process to 5.000, - € set (§ § 14 para 1 sentence 1, 13 para 1 sentence 1 GKG). Nickenig Signed Signed Signed Olzien Kappes-Günther |
noise description Kuhstraße
Castrop-Rauxel - operator . A wind turbine is suing foreign wind turbines - decide Ruhrnachrichten