Hogan Lovell OffshoreBook 2023 230809 OnlinePDF - Flipbook - Page 117
Offshore Wind Worldwide 2023
3. PUBLIC LAW AND
REGULATORY PERMITS
The approval, construction, and operation
of OWTGs, GCSs, and other energy generating facilities are subject to the permission
regime provided under the Offshore Wind
Energy Act (cf. sec. 65 et seq.) if they are to
be installed within the German EEZ.
Previously, only grid-connected OWTGs
were subject to the permission regime
under the Offshore Wind Energy Act. This
has been changed in the 2020 reform. Now,
OWTGs are covered regardless of whether
they are to be connected to the (onshore)
grid or not.
The competent authority for applications
and procedures under the Offshore Wind
Energy Act is the BSH. The type of permit
required is a planning approval (Planfeststellung) or, in case of OWTGs to be installed
on pre-investigated sites, a planning permit
(Plangenehmigung) which is subject to a
simpler and faster procedure. Both types of
permits have, in contrast to other types of
public permits, a concentration effect which
means that in principle all required public
permits are concentrated in and granted by
the planning approval or planning permit.
If to be installed within the German territorial waters (12nm zone), the construction
and operation of OWFs and other facilities
(cables etc.) are subject to a permit issued
by the particular state, based on general
Federal Immission Control Act.
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Prerequisite for the application for and determination of the planning approval for a
(grid-connected) OWTG is the receipt of bid
award under the tender procedure.
Administrative decisions in general, including permits such as the planning approval
/ planning permit, are subject to a staggered
concept of remedies (first stage: administrative objection proceeding before the
next higher authority, second stage: action
before the administrative court) filed by the
applicant (i.e., the OWF owner) or third parties until one month after the decision has
been notified to the respective person.
In case of a planning approval / planning permit, an action can be directly filed without
completing an objection procedure first.
Notifications of administrative decisions in
general take place individually, which means
there can always be a risk that a remedy period is still running for unidentified individuals
which have not been notified individually
but are affected by the planning. However,
in case of planning approvals (not planning
permits), notification takes place by displaying a hard copy of the planning approval for
two weeks in the respective municipalities
where the project has an impact. After the
two weeks‘ period, the planning approval is
deemed to be notified towards all affected
persons and as such is final and binding.
Following this, the planning approval is only
subject to cancellation in very exceptional
cases, e.g., where the cancellation is reserved or the permit holder does not comply
with ancillary conditions.
