Restoration Order: Enhanced Requirements for Definiteness and Proper Exercise of Discretion

A nature conservation restoration order must be free from discretion errors and sufficiently definite in order to be enforceable.

The Legal Framework: Nature Conservation Law Between Prohibition on Intervention and Duty to Restore

The nature conservation law regularly presents landowners in rural areas with considerable legal challenges. In particular, in landscape protection areas, far-reaching prohibitions apply which do not only cover classic construction measures but also terrain modifications such as infilling, excavation or grading. The legal basis for administrative orders is § 3 BNatSchG in conjunction with the state-level implementing regulations, here § 2 Abs. 2 NNatSchG. Accordingly, the competent nature conservation authority can issue a restoration order and thereby require that a state of nature and landscape that was unlawfully altered is restored.

Such restoration orders significantly interfere with the right to property and regularly form the basis for enforcement measures. Accordingly, the formal requirements are correspondingly high. In addition to a sustainable substantive legal basis, in particular the requirement of definiteness under § 37 Abs. 1 VwVfG as well as the requirements for proper exercise of discretion and statement of reasons for discretion under §§ 40, 39 VwVfG must be complied with. The decision of the Higher Regional Court of Lower Saxony of 17.12.2025 – Az. 4 ME 71/25 specifies these requirements with remarkable clarity and sets clear boundaries for administrative practice.

What the case was about: Soil infilling and administrative removal order

The proceedings were based on a dispute between a landowner and the lower nature conservation authority. The applicant is the owner of two parcels of land that are completely located within a designated landscape protection area. The areas are used as grassland and also have the characteristic of a particularly protected biotope according to the property register.

In connection with the construction of a residential house for a family member, the applicant had soil excavated material brought onto one of the parcels. Following notification by the local council and an inspection of the site, the nature conservation authority assumed that the infilling had significantly altered the natural terrain structure. In particular, a natural slope had been levelled and a small valley system had been filled. The authority saw violations of the Landscape Protection Area Ordinance as well as building law provisions and issued a decision by which it ordered the removal of the "imported soil", its disposal and the restoration of the previous state. At the same time, an administrative fine was threatened and later immediate enforcement was ordered.

The applicant objected to this by filing an objection and requested interim legal protection. He objected in particular to the lack of definiteness of the order, since it was neither clear which partial areas were affected nor to what extent soil was to be removed. Furthermore, he argued that the original state could no longer be exactly reconstructed and that the authority had not properly exercised its discretion.

The decision of the Higher Regional Court of Lower Saxony: High hurdles for burdensome orders

The Higher Regional Court of Lower Saxony confirmed the decision of the Administrative Court of Göttingen and rejected the authority's appeal. In the opinion of the court, the restoration order was already unlawful for formal reasons.

At the centre of the decision stands the requirement of definiteness. The court makes clear that an administrative act is only sufficiently definite if the addressee can clearly recognise what is concretely required of him in order to align his conduct accordingly. What is decisive is not the subjective intention of the authority, but the objective meaning of the order from the perspective of a reasonable recipient. Ambiguities are held against the authority, in particular because the administrative act must form the basis for enforcement measures and cost claims.

For restoration orders under § 2 Abs. 2 NNatSchG, this means that the authority must not stop at the abstract demand to restore the "previous state". Rather, this state must – insofar as possible – be described concretely. In the decided case, in the court's view, it was not sufficient to merely name the affected parcels of land. Neither the spatial scope of the affected area nor the location of the soil to be removed were sufficiently specified by the restoration order in question. It was particularly problematic that the authority itself proceeded on the basis of different area sizes and these contradictions were also evident from the files.

The Higher Regional Court does, however, also emphasise that restoration does not require the exact previous state. From a nature conservation perspective, a state that is as comparable as possible is sufficient. An authentic reconstruction is regularly neither possible nor required. Precisely for this reason, however, it was incumbent on the authority to specify the restoration objectives on the basis of objective criteria – for example existing topographic maps, contour lines or by attaching a sketch. The fact that this was not done makes the restoration order indeterminate and thus not enforceable.

In addition, in the court's view, there is a separate discretion error. The nature conservation authority had formally referred to its discretion, but confined itself in the reasoning to the formulaic phrase that the scope of discretion had been exhausted. This clearly does not meet the requirements of § 39 Abs. 1 VwVfG. What is required is a substantive, coherent and comprehensible statement of the essential considerations that were decisive for the order and its concrete scope. Since such reasoning was completely absent, there was a failure to exercise discretion, which additionally established the unlawfulness of the order.

Significance for practice: Strengthening the rights of landowners in a restoration order

The decision of the Higher Regional Court of Lower Saxony has considerable significance for the practice of nature conservation authorities. It makes clear that even in environmental and nature conservation law, minimum requirements of the rule of law must be strictly observed. Restoration orders must not be formulated generically and their substantive specification must not be shifted to the enforcement proceedings. Likewise, a schematic or formulaic statement of reasons for discretion is not sufficient.

For affected owners, the decision opens up considerable defence options. Indeterminate orders and insufficiently reasoned discretionary decisions are challengeable – both in the Emergency legal protection as well as in main proceedings. Especially in the case of extensive demolition or restoration obligations with considerable cost risk, a careful legal examination is essential.

Our recommendation: obtain administrative law advice at an early stage

If you receive a nature conservation restoration order, a removal order or a threat of penalty payment, you should not accept it without examination. Frequently – as the present decision impressively demonstrates – formal and substantive defects become apparent that can be successfully raised.

As a law firm specializing inter alia in administrative law, the experts at AVANTCORE Rechtsanwälte in Stuttgart have many years of experience in defending against administrative action. We examine orders for definiteness, errors of discretion and proportionality and consistently represent your interests against authorities and before the administrative courts. Contact us at an early stage – we will advise you comprehensively and in a goal-oriented manner.

We have already discussed several further decisions on nature conservation law:

VG Gelsenkirchen: Where there is a direct connection to federal highways, road safety takes precedence over additional residential use in open countryside.

The OVG Lüneburg reaches a landmark decision that provides greater clarity on the handling of carrier procedures, FFH examinations and compensation measures in offshore and infrastructure projects.