Repowering – when neighbours cannot fight back

In a recent decision of 22 April 2025 (Az. 7 S 1/25), the OVG Berlin-Brandenburg ruled on the suspensory effect of a neighbour's objection against a modification permit for a so-called repowering project.

1. Background to the decision

The intervening party planned to replace older wind energy installations with more powerful, significantly taller models within the scope of a qualified development plan. Such projects are generally referred to as repowering. The applicant objected to the approved total height of over 200 metres on the grounds that the modification was legally defective and imposed an unreasonable burden on him.

2. Key legal principles

The OVG decision contains a number of fundamental statements regarding the protective scope for third parties of provisions in development plans, as well as the duty of consideration and the extent of neighbour protection:

• Exemption from fixed measures (§ 31 Abs. 2 BauGB): The court clarifies that neighbours can only invoke errors in an exemption from provisions if the relevant provision has protective character for third parties. However, the height limitation of 200 m in the development plan here primarily serves the technical control of the wind park, not the individual protection of third parties – in particular not of property owners outside the planning area.
• Duty of consideration (§ 15 Abs. 1 Satz 2 BauNVO): Visual dominance was not established, as the distance of the wind energy installation to the applicant's nearest properties was over 1.8 km. The standard under § 249 Abs. 10 BauGB – twice the installation distance – was significantly exceeded. Mere visibility does not give rise to a right of defence.
• Noise and fire protection aspects: Blanket reference to previous noise exposure and allegedly inadequate fire-fighting water supply does not satisfy the court for substantiated evidence of concrete legal violations. Furthermore, the court emphasises that fire protection regularly does not contain a neighbour-protective element.
• Area preservation claim: This is also rejected because the applicant and the project property do not lie in the same building area and cross-area protective effect was not evident in the concrete case.

3. Classification and practical significance

The decision emphasises the significantly increased requirements for neighbours wishing to defend themselves against repowering projects at wind parks. The generous interpretation of the public interest in renewable energy (§ 2 EEG) and the emphasis on the planning discretion of municipalities create high hurdles for successful neighbour objections.

The Senate also reinforces the limited right of action for owners outside the development plan area, even if they are affected by the fixed measure. The OVG follows the line of the Federal Administrative Court (the so-called "Wannsee" judgment), which recognises neighbour protection beyond the boundaries of the planning area only in exceptional cases.

Recommendation for those affected by repowering

Property owners who feel impaired by wind energy installations are urgently advised to take action at an early stage within the framework of public participation and to submit concrete, substantiated objections. General references to sight lines, subjective discomfort or blanket noise complaints generally do not suffice to successfully enforce legal protection on the merits.

For legal proceedings, it is decisive whether and to what extent an individual right of defence can be derived from the duty of consideration or provisions protecting third parties. Detailed examination of distance relationships, planning intentions and actual immission exposure is essential in this regard.

Do you have questions about a wind energy project in your neighbourhood or are you confronted as a municipality with objections?
A lawyer and specialist lawyer from AVAVANTCORE Rechtsanwälte from Stuttgart with particular expertise in Administrative Law can provide you with comprehensive advice on opportunities, risks and appropriate legal steps.