1. Participation of neighbours
The judicial procedure is regulated in the Code of Administrative Court Procedure (CACP).
Section 65 CACP provides.
“(1) As long as the proceedings have not yet been finally concluded or are pending at a
higher instance, the court may subpoena others ex officio or on request whose legal
interests are affected by the ruling.
(2) If third parties are involved in the contentious legal relationship such that the ruling can
also only be imposed on them uniformly, they shall be subpoenaed (necessary subpoena).”
In another translation the term “third party” (in German “Beigeladener”) is used.
In the given case paragraph 2 is not applicable. The court may but must not follow the request of the neighbours.
Section 66 CACP provides
“The subpoenaed party may independently assert means of attack and defence and
implement all procedural acts effectively within the requests of a person concerned. He/she
may only lodge derogating factual motions if a necessary subpoena exists.”
Provisions on safety distances
The regulation on Non-Ionising Radiation Protection is a legal ordinance based on the Federal Immission Protection Act (26. Verordnung zum Vollzug des Bundes-Immissionsschutzgesetzes). This regulation is binding for the court unless it is not in compliance with the law or if it is unconstitutional. The Federal Constitutional Court has rejected constitutional complaints based on Article 2 Basic Law which provides:
(2) Every person shall have the right to life and physical integrity.
Freedom of the person shall be inviolable. These rights
may be interfered with only pursuant to a law.
See in this context the
CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION
Right to the integrity of the person
Everyone has the right to respect for his or her physical and mental integrity.
A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.
The Federal Constitutional Court stated that there is no secure scientific knowledge that a danger for human health would occur even if the provided safety distance was kept.
In the given case the refusal of the building permit reasoned with the burden of proof is unlawful.
3. Alternative locations
In principle the court must not examine alternative locations and the operator must not accept an offer of a location where the distance to residential areas is longer. Issuing a building permit is in principle not a discretionary act. The argument that another location would be better is to reject.
Municipalities and providers often try to find a consensual solution.
4. Building Design Regulation applicable?
A new legislation must be considered in such a case where the plaintiff wants the issue of a rejected administrative act (Verpflichtungsklage).
5. Building Design Regulation lawful?
The question is, if the real motion for the design regulation was protection of human health. The Administrative Court of Würzburg held that esthetical reasons were pretended and regarded the local regulation as void. The Bavarian Administrative Court of Appeal did overturn this decision.
Until now there is no settled case law, whether a municipality is empowered to prescribe longer safety distances by a local regulation than provided in the Federal ordinance. The prevailing opinion is “no”.
Under the German law generally a right to an exception is not provided. A wide discretion of the public authority is recognized.