Administrative Court: Wind Turbines vs. VOR Aircraft Radio Navigation System

By decision of 5 February 2014 the Administrative Court of Oldenburg (VG) dismissed an application by the German Air Traffic Control Service (DFS) in a preliminary injunction procedure to stop the construction and the operation of five wind turbines until the main proceedings will have been completed.

The five wind turbines are part of a planned wind farm with 32 turbines and shall be erected in a distance of approximately 11 to 13.5 km and within a radial range of 304° bis 310° to the radio navigation system (VOR) Bremen and operated by DFS. VOR Bremen emits signals to aircraft that allow to determine in which angle aircraft move towards or away from VOR Bremen or pass it. There are already other licensed wind turbines in the area.

DFS supported by the Federal Republic of Germany represented by the Federal Air Traffic Controlling Office (BAF) challenged the permit granted for the five wind turbines, which foresees its immediate execution (sofortige Vollziehung). In the preliminary proceedings DFS sought to have the suspensive effect of the main lawsuit initiated against the permit restored. DFS wanted to prevent the construction and operation of the turbines until a decision in the main proceedings will have been taken (procedure pursuant to Section 80 para. 5 German Administrative Court Rules – VwGO).

DFS alleged that the operation of VOR Bremen would be unacceptably disturbed (unzumutbar gestört) by the wind turbines. The district of Wesermarsch, which had granted the permit, had erroneously rejected problems at VOR Bremen, overriding an assessment to the contrary by BAF, DFS argued.

VG Oldenburg dismissed the application for temporary relief. The Court already found the application to be inadmissible, yet still remarked on the material merits of the application. Based on its summary review of the matter, the court concluded that the district of Wesermarsch had in all likelihood made no mistake in granting the permit, hence the legitimate interest to construct and operate the turbines during the main proceedings prevailed. The district was able to override the opinion of BAF, as the relevant procedures under the Immission Control Act had a “concentration effect” (Konzentrationswirkung). The assumptions on the disturbance of VOR Bremen made by the district of Wesermarsch were also well founded in the law and reasonable, based on a plausible scientific opinion provided by the project promoter (Vorhabenträger), VG Oldenburg held.

The decision is not yet final. An appeal can be filed with the Higher Administrative Court of Lüneburg.

Source: Administrative Court of Oldenburg (ref. no. 5 B 6430/13)

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