Deadlines for immissionsschutz law approval proceedings for wind power are strict, and approval is definitively lost if documents are submitted late: Higher Regional Court (OVG) Berlin-Brandenburg confirms exclusion effect under § 20 Abs. 2 S. 2 9. BImSchV

For immissionsschutz law approval proceedings, timely submission of all required documents is also crucial.

Legal background: Completeness of application documents as a central approval requirement

By judgment of 30. September 2025 (OVG Berlin-Brandenburg, 7 A 15/25) the 7th Senate of the Higher Regional Court (OVG) Berlin-Brandenburg has reached a groundbreaking decision for immissionsschutz law approval proceedings under the Bundes-Immissionsschutzgesetz (BImSchG): If a deadline set by the authority for the submission of missing application documents under § 20 Abs. 2 Satz 2 der 9. BImSchV is missed, this deadline has exclusion effect. Subsequently submitted documents may no longer be taken into account when deciding on the application.

With this, the Higher Regional Court (OVG) Berlin-Brandenburg clearly positions itself in previously inconsistent case law and emphasises the priority of accelerating the procedure over substantive review of documents submitted late. Because of the fundamental importance of the legal issue, the Senate has expressly admitted revision to the Federal Administrative Court.

The decision is of high practical relevance – in particular for project sponsors of wind energy installations and industrial installations, who often have to submit complex expert reports for immissionsschutz law approval proceedings.

What the case was about: Approval application for wind energy installation rejected due to missing turbulence report

The claimant, a company specialising in wind energy, applied to the Landesamt für Umwelt Brandenburg for approval of a wind energy installation of type eno152 with a capacity of 5,6 MW and a total height of 241 m.

After receipt of the application documents, the authority found that essential components were missing – in particular a turbulence report and a test report on proof of structural safety. It set the applicant a deadline for submission by 17. Mai 2024, later extended to 12. August 2024, and pointed to the legal consequences of § 20 Abs. 2 S. 2 9. BImSchV for immissionsschutz law approval proceedings.

Since the turbulence report was not submitted even by the expiry of this deadline, the authority rejected the application on 16. August 2024 due to incompleteness. Only in February 2025, approximately six months later, did the claimant submit the report.

In the objection proceedings it argued that the material date for assessing completeness in immissionsschutz law approval proceedings was not Originaldecision, but rather the Contestation decision. Furthermore, she was not responsible for the delay, as the expert opinion was completed late due to staffing shortages at the expert's office. Finally, she faced a loss of priority against competing projects if she were forced to file a new application.

The authority rejected the objection – correctly, as the Higher Regional Court (OVG) has now decided.

The Higher Regional Court's legal assessment: Exclusion effect as a mandatory instrument for accelerating immission control licensing procedures

The Court makes clear: § 20 Abs. 2 S. 2 9. BImSchV obligates the authority to reject an application reject if the required documents are not complete within the prescribed period. The period has an exclusion effect – this means: After expiry of the deadline, documents submitted later must not be considered any longer.

The decisive point in time for assessing completeness is therefore the point in time of the original decision, not that of the objection or appeal. The OVG substantiates this systematically and teleologically:

• The wording of § 20 Abs. 2 S. 2 9. BImSchV contains no provision for later submissions.
• The legislative history of the provision (BR-Drs. 494/91, p. 80) shows that the regulation serves the purpose of accelerating the procedure, because licensing procedures are frequently substantially delayed by incomplete documents.
• Only through the risk of rejection and the necessity of filing a new application does the desired incentive arise to submit complete documents within the prescribed deadline.

In so doing, the Court explicitly contradicts the view of certain administrative courts that have so far understood the deadline merely as a procedural requirement without an exclusion effect.

Exercise of discretion and atypical case: no deviation from the standard rule

In the Senate's view, there was also no discretionary error present. Although the rejection pursuant to § 20 Abs. 2 S. 2 9. BImSchV is formally structured as a shall-provision, it concerns an intended discretion: Only in atypical cases may deviation from the rule be made.

No such atypical case existed here. Neither the delay caused by the expert nor the threatened loss of priority constitutes an exception for immission control licensing procedures. The claimant had submitted the application deliberately incomplete and had assumed the risk of late expert opinion preparation herself. The Court was also not convinced by the argument that the rejection contradicted the purpose of the Renewable Energy Act (EEG) – on the contrary: strict enforcement of the deadline contributes to the acceleration of the energy transition.

Furthermore, the Senate pointed out that applicants can secure their priority through a new application with complete documents. A loss of priority is thus not inevitable.

Finally, the Higher Regional Court (OVG) made clear that the inspection report on the turbulence expert opinion must already be available for the grant of the immission control permit. Since this inspection report was also missing, the lawsuit would have been unfounded even if the turbulence expert opinion had been submitted in time.

Consequences for practice: Strict observance of deadlines mandatory – resubmission does not help

The decision demonstrates that immission control permit procedures – subject to a different decision by the Federal Administrative Court – are unlikely to allow any further leniency in the future. Project sponsors must submit all required expert opinions, inspection reports and documents completely and within the prescribed period.

Delays in immission control permit procedures caused by external experts, staff shortages or commissioning difficulties are borne by the applicant. If a deadline is missed, only a new application remains – a delay that can be costly and time-consuming in project practice.

Particularly in the area of wind energy installations with high competitive pressure and limited sites, missing an exclusion deadline can have significant economic consequences.

Conclusion: Precedent for procedural strictness – revision admitted

The judgment of the Higher Regional Court Berlin-Brandenburg (OVG) provides for the first time appellate court clarity on the decision-relevant time within the meaning of § 20 Abs. 2 S. 2 9. BImSchV and confirms the exclusionary effect of the resubmission deadline. Since revision has been admitted, a definitive clarification by the Federal Administrative Court is to be expected.

Until then, all project sponsors and planning offices should exercise the utmost diligence when the authority issues further inquiries with deadline. Even a seemingly minor oversight can lead to permanent loss of the permit entitlement.

Our recommendation

For everyone who must submit applications for immission control permit procedures for wind energy installations, industrial plants or waste treatment facilities:

• Deadlines from § 20 Abs. 2 9. BImSchV are mandatory and cannot be extended beyond three months.
• Incomplete applications are rejected after the deadline expires.
• Resubmitted documents cannot be taken into account.
• Atypical cases are extremely rare and must be construed narrowly.

To avoid missing deadlines, losing priority, or pursuing incorrect procedural strategies, early legal advice is recommended from our experts specializing in administrative law at AVANTCORE Rechtsanwälte in Stuttgart.

We have already discussed another decision by the Higher Regional Court Berlin-Brandenburg (OVG) on wind energy:

Repowering – when neighbours cannot put up a fight