The operator needs only a building permit. The threshold for the application of the Federal Immission Control Act and an IPPC procedure is 10 MW. In the given case the produced electric energy was about 1 MW.
The biogas plant belongs to the so called “privileged development projects” for which a land use plan to set up by statutes from the municipality is not a precondition. The permissibility of such a project is regulated in Section 35 of the Land Use and City Planning Act (Federal Building Code –FBC-). http://www.iuscomp.org/gla/statutes/BauGB.htm
Section 35 FBC provides:
“(3) A conflict with public interests exists in particular where the development project
3. may give rise to or is exposed to harmful environmental impact,
This is the key norm for the solution of the case.
The judicial procedure is regulated in the Code of Administrative Court Procedure (CACP).
Preliminary administrative review
Section 68 CACP states:
1) Prior to lodging a rescissory action, the lawfulness and expedience of the administrative
act shall be reviewed in preliminary proceedings. Such a review shall not be required if a
statute so determines, …
Some Federal States (Laender) abolished more or less the preliminary administrative review, others did not. In Bavaria only in a few matters the preliminary administrative is provided optionally, but not in this case.
The extent of review encompasses expediency whereas the court does not have any discretionary power.
2. Legal Standing
The general rule for legal standing is stipulated in Section 42 CACP which provides:
“2) Unless otherwise provided by law, the action shall only be admissible if the plaintiff claims that his/her rights have been violated by the administrative act or its refusal or omission.”
Exceptionally legal standing is not a main problem in this case. The general principles on legal standing in land use and building law are applicable.
Individuals have legal standing if they have property or a similar right in the vicinity. Which property belongs to the affected neighbourhood depends on the impact of the development project which must be found by a case by case examination.
Tenants are not regarded as a “neighbour”. They have no legal standing. Their interests have to be defended by the owner.
The Jewish Association is owner of the plot where the cemetery is located so that its legal standing is not a problem.
The rules for legal standing of municipalities are different.
The municipality where the development project is located has always legal standing. The community may defend its constitutional right to self-government to which belongs the so called “planning sovereignty”. A violation of Article 35 FBC is regarded as an impairment of this right.
The adjacent municipality has legal standing if it can invoke an affect on its development. The case law is restrictive in this matter.
The assessment of noise immissions is regulated both in legal ordinances based on the Federal Immission Control Act and in administrative regulations based on the said law and in technical guidelines which are established by non governmental bodies. The various regulations concern each a special kind of noise (traffic, industry, sports and so on).
In this case the Technical Instructions on Noise Control (TA Laerm) is applicable, an administrative regulation on Federal level. These instructions are not binding for the judiciary but in practise they have the function of a legal provision and the courts follow regularly the assessment based thereon.
The permissible limit for noise in a residential area is 55 dB(A) by day and 40 dB(A) by night.
The noise from a biogas plant is produced by the traffic and the generator. The generator is a permanent source of noise but this noise is quite low.
The assessment of smell pollution is partly regulated by the Technical Instructions on Air Quality Control (TA Luft) an administrative regulation on Federal level. These instructions concern only IPPC installations and are limited to the implementation of the precautionary principle. In the given case these regulations are not applicable.
There are Technical Guidelines on Smell Immissions
(Geruchsimmissionsrichtlinie). These guidelines are not generally
recognized by the public authorities but following the case law they may
be used as an appropriate tool. In the given case the independent
expert charged by the court made his assessment on the basis of these
The court is not limited on the legal and factual aspects invoked by the parties.
Section 86 of CACP provides:
“(1) The court shall investigate the facts ex officio; those concerned shall be consulted in doing so. It shall not be bound to the submissions and to the motions for the taking of evidence of those concerned.”
Section 96 CACP provides:
“(1) The court shall take evidence in the oral hearing. It may in particular inspect evidence
and question witnesses, expert witnesses and those concerned, and consult certificates.
(2) In suitable cases, the court may already have evidence taken prior to the oral hearing by
one of its members acting as a commissioned judge or, by designating the individual
evidence questions, request another court to take evidence.”
Normally the establishing of the facts is not a crucial problem in the proceedings before the administrative courts. Taking evidence mostly focuses on the technical or scientific assessment of the facts. Hearing of independent experts in the judicial proceeding does not happen often. In many cases the operator is obliged either by law or by administrative order to present an expertise on technical aspects together with the application for permit e.g. on the danger of fire. The experts acting in this field usually are recognized and they are mostly accepted as impartial. Secondly nowadays the public authorities have employed technical experts whose assessments are considered in the case law as equivalent to the expertise of independent engineer firms. Involving technical experts from the public authority reduces the cost risk under the looser pays principle which is in force in Germany. That is why lawyers quite seldom request evidence by independent experts.
5. Burden of Proof
As mentioned above the establishing of the mere facts is not a key problem. That is why the burden of proof does not play a significant role in litigations aiming the annulment of an administrative act. The situation is different in compensation matters where often the responsibility of a person is disputed. Under Section 6 of the Environmental Liability Act the burden of proof meets the operator if a damage did occur which is typical for the installation in question. But this provision is not applicable in the given case where the prevention of environmental harm is at stake.
The general rules on the burden of proof are applicable. The claimant has the burden of proof.
6. Application for new expert evidence
The request is not too late if the court had not set a deadline for designating items of evidence by a separate order..
Section 86 SACP provides:
“(2) A motion for the taking of evidence made in the oral hearing may only be rejected by a
court order, which shall require to be reasoned.”
There is settled case law on reasons by which such a motion can be rejected. The respective rules are adopted from the civil and penal procedural law. In environmental matters the administrative courts often refer to a provision of the Civil Procedure Act (Section 412) under which a new expertise may be ordered if the court considers the given expertise as insufficient. As mentioned before the reasoned opinion of a technical civil servant can be considered as an expertise. But in the given case the administrative court of Würzburg ordered a new expertise by an engineer firm due to the parties and their objections and because of the great publicity this case. The question if the Jewish cemetery is a particular vulnerable monument seems to be of general interest. The case was adjourned.
The assessment of religious issues is a delicate matter in this case. Firstly a common opinion on these issues seems not to exist. Secondly the court can refuse the request only if it has the necessary knowledge itself. In the given case the court did not hear an expert on Jewish religion.
7. Extend of judicial review
As mentioned above the court does not have any discretion how to decide the case.
The limitation of the scope of review even if the plaintiff had got access to justice is a speciality of the German administrative judicial procedure resulting from the so called “protective norm doctrine” (Schutznormtheorie). The claimant may only refer to legal provisions aiming the protection of his individual rights. For example the right of self-government must be defended by the municipality the dignity of the cemetery must be defended by the Jewish community and so on.
Religious aspects are not excluded. The Jewish community challenges inappropriate immissions. In this context the protection need is to assess.
8. How much smell is reasonable?
The background of the case study was a case pending with the Administrative Court of Würzburg (Bavaria). In this case a mass animal breeding (swine) was challenged.
The crucial question was whether the Jewish cemetery is more
vulnerable than a Christian cemetery. In the previous case law of the
Administrative Court of Würzburg a Christian cemetery in a village or in
a rural region has the same position as dwellings. That is why the
smell protection like in normal residential areas can not be required.
But under the Jewish religion swine is considered as impure. Moreover
the history is to take into consideration.
The Administrative Court of Würzburg stated in its judgment from 19 October 2010 (W 4 K 07.1422) that the threshold like for dwelling areas must be respected. In the given case expert witness found that smell pollution does not go beyond the respective immission limit. The judgement did not become final.