Administrative Court Schleswig: The property owner may be held directly liable as a disturber of the current state to eliminate burdens caused by waste.

The property owner may also be held liable as a disturber of the current state to eliminate waste and fire residues that he did not himself cause.A recent decision by the Administrative Court Schleswig (VG Schleswig, Beschluss vom 15.08.2025 – 6 B 18/25) exemplifies the extent of a property owner's liability as a so-called disturber of the current state in waste law and soil protection law. A disturber of the current state is anyone who exercises actual control over a disturbing matter. What matters is not the question of culpability or one's own conduct, but solely the factual ability to access. In waste law, this means that the owner of a property may quickly be held liable as a waste holder within the meaning of § 3 Abs. 9 KrWG. In soil protection law, it is sufficient that a harmful soil contamination manifests itself on his land.

What was the case about? Waste, fire residues and contaminated soil

On the leased property of the applicant, numerous waste materials and unroadworthy vehicles were stored over many years. Following a fire in May 2025, significant fire residues and pollutant entries into the soil arose. The competent authority ordered, on the basis of § 62 KrWG and § 10 BBodSchG, the disposal of fire waste, the clearance of the remaining waste and vehicles as well as the removal of the contaminated topsoil. In addition, general prohibitions on waste storage and on the handling of water-hazardous substances were issued. To secure the measures, the authority threatened penalty payments and ordered immediate enforcement (§ 80 Abs. 2 Nr. 4 VwGO). Against this, the property owner challenged the decision before the VG Schleswig – ultimately with little success.

Legal Considerations of the Court

1. Immediate enforcement:

The order for immediate enforcement was confirmed. In light of the risk of further relocation of contaminants, the public interest in prompt implementation of the order was to be valued higher than the private interest in deferment. The decisive factor was the case-specific reasoning of the authority.

2. Disposal of fire debris (§ 62 KrWG):

The fire residues are waste within the meaning of § 3 Abs. 1 KrWG, as they have lost their intended purpose. The applicant is to be classified as a waste holder. The basic obligations under §§ 7, 15 KrWG were breached, as neither recovery nor proper disposal took place. The obligation to provide disposal records was also lawful.

3. Vehicles and other waste (§ 62 KrWG):

The court made clear: Non-roadworthy vehicles that rot in the open for years are waste. A mere reference to a 'residual value' is insufficient to exclude the waste classification. The order was furthermore sufficiently specific; a detailed inventory list is dispensable in the case of bulk waste.

4. Soil remediation (§ 4 Abs. 2, 3, § 10 BBodSchG):

The laboratory values demonstrated a harmful soil change within the meaning of § 2 Abs. 3 BBodSchG (exceedance of precautionary values for lead and zinc). The order to remove at least 10 cm of soil was proportionate. Further removals were only required if deeper layers remained contaminated. The excavated material would again constitute waste, so that the disposal obligation under the KrWG would apply.

5. General prohibitions:

The abstract general prohibitions ('no waste storage outside licensed facilities'; 'no handling of water-hazardous substances') were, however, quashed by the court. They were unlawful, as the applicant had not engaged in these activities himself. Liability as a condition-disturber permits only concrete hazard abatement, but not preventive, general prohibition orders.

6. Penalty payments:

The threats of penalty payments were permissible insofar as they secured the lawful orders. With respect to the unlawful prohibitions, they were ineffective.

Consequences for liability as a condition-disturber in practice

The decision makes clear that property owners bear far-reaching responsibility in environmental and waste law. Already the factual control suffices to be obligated as a condition-disturber. In concrete terms, this means:

• Waste and fire debris must be disposed of properly – even if they were introduced by third parties.
• Permanently parked vehicles are regularly to be classified as waste.
• Soil contamination triggers remediation obligations under the BBodSchG.
• Excessive general-clause prohibitions are challengeable and offer approaches for successful remedies.

Recommendation for action for owners and operators

Anyone who leases or uses a property themselves should arrange early for clear contractual provisions to prevent waste and hazardous substances. Regular inspections and swift removal of contaminants minimise the risk of authorities holding the landowner liable as a nuisance operator. In the worst case, disposal measures and remediation measures should be actively implemented and simultaneously unlawful prohibition orders should be challenged in court. Conclusion: The VG Schleswig emphasises a strict approach in waste and soil protection law: clear, remediate, document is mandatory. At the same time, the decision shows that owners can successfully defend themselves against excessive prohibition orders. The experts in administrative law at AVANTCORE Rechtsanwälte in Stuttgart are available. We have already reported on a similar decision from Bavaria: Der VGH München has confirmed an immediately enforceable removal order for an illegal storage site in the open countryside with substances that endanger the environment.