Neuburg: Not entitled to silent neighborhood
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Oberverwaltungsgericht Rheinland-Pfalz
JUDGEMENT ON BEHALF OF THE PEOPLE
Delivered on: 07.08.2003
In the administrative cause of action and planning permission
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the District Legal Affairs Committee of the Westerwald district of 20 December 1999 repealed.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
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