The world’s growing energy demand poses a serious problem. At the same time fossil fuels are finite, which we must work against. Therefore, the Federal Government of Germany has set itself the goal to push forward the use of renewable energy in order to completely do without the generation of nuclear energy by 2023. There are, however, no specific guidelines from the European Directive on the promotion of electricity from renewable energy sources for the internal electricity market regarding how high each share of the different production method should be and, above all, which specific aim should be achieved by the share of wind energy. Nevertheless, it presents a crucial step toward a nuclear phaseout and a concomitant change of course of the Federal Government of Germany in the spring of 2011 regarding the expansion of renewable energy, taking the nuclear catastrophe in Fukushima into account. Using new legal planning approaches, also including the area of Rhineland-Palatinate, opportunities should be provided to make previously protected land available for setting up facilities for the generation of renewable energy. However, it is important to examine the legal situation regarding the installation of these kinds of constructions more detailed, as no general statements can be made. This will be illustrated using the example of the landscape conservation area “Eulenkopf and surrounding area” in the district of Kaiserslautern. The stated goal of the Social Democrat/Green coalition of the federal state government of Rhineland-Palatinate is to considerably expand the generation of electricity from renewable energy sources so that by 2030 at least the entire electricity demand can be covered by those. Due to the enormous potential of wind power, it is therefore necessary to quintuple its share of electricity generation by 2020, compared to 2011 numbers. In order to achieve the desired political objectives, by 2030 the number of turbines has to be increased to around 2650, representing a capacity of 7500 MW. This increase gives reason for boundary conditions to manage the generation of wind energy to be adjusted. This is intended to facilitate management and simultaneously minimise negative effects, such as the “sprawling” of wind turbines.
The world’s growing energy demand, which is mainly due to increased consumption—which again is due to higher standards of living, increasing mechanization in everyday life as well as due to recreational activities and energy-intensive production processes, poses a serious problem. At the same time fossil fuels are finite, which we must work against. Therefore, the Federal Government of Germany has set itself the goal to push forward the use of renewable energy in order to completely do without the generation of nuclear energy by 2023. Using new legal planning approaches, also including the area of Rhineland-Palatinate, opportunities should be provided to make previously protected land available for setting up facilities for the generation of renewable energy. How- ever, it is important to examine the legal situation regarding the installation of such constructions in more de- tailed, as no general statements can be made. This will be illustrated using the example of the landscape conser- vation area “Eulenkopf and surrounding area” in the district of Kaiserslautern.
The latest revision of 2012, the German Act on Granting Priority to Renewable Energy Sources (short: EEG (Erneuerbare-Energien-Gesetz)) regulates the preferred supply of electricity from renewable sources. According to §3 EEG, the following renewable energy sources are used for the generation of electricity:
- Hydropower,
- Geothermal energy,
- Energy from biomass, including biogas, biomethane, landfill gas and sewage gas as well as the biodegra- dable proportion of waste from households and industry, as well as
- Wind energy.
There are, however, no specific guidelines from the European Directive on the promotion of electricity from renewable energy sources for the internal electricity market (Directive 2001/77/EC), regarding how high each share of the different production method should be and, above all, which specific aim should be achieved by the share of wind energy [
The stated goal of the Social Democrat/Green coalition of the federal state government of Rhineland-Palatinate is to considerably expand the generation of electricity from renewable energy sources so that by 2030 at least the entire electricity demand can be covered by those. Due to the enormous potential of wind power, it is therefore necessary to quintuple its share of electricity generation by 2020, compared to 2011 numbers. In order to achieve this, each region of the federal state is to contribute to the target achievement proportionately, taking into account local conditions [
In mid-2013, there were about 1300 wind turbines in Rhineland-Palatinate with a total capacity of currently around 2100 megawatts (MW). In order to achieve the desired political objectives, by 2030 the number of turbines has to be increased to around 2650, representing a capacity of 7500 MW [
The Partial Adjustment has not only led to changes in responsibilities, but it also features fundamental alterations with regards to prerequisites for the sites of wind turbines. For example, landscape conservation areas, certain parts of nature reserves and biosphere reserves as well as Natura 2000 sites are no longer areas that are out of bounds, and can therefore be considered as potential areas for the use of wind turbines. Areas are there- fore modified which must be noted both in local land-use plans as well as in regional development plans. This results not only in changes in planning policies but also changes from a nature conservation and natural law point-of-view.
In order to be able to efficiently expand wind energy, when planning suitable sites must be identified and si- multaneously unsuitable sites must be excluded. Protection from neighbours, as well as wind conditions are im- portant factors when selecting suitable locations. Nature conservation issues and landscape conservation are also to be taken into account. These include the protection of species, the protection of the landscape, as well as the recreational value of a landscape [
The problem of the Partial Adjustment is that in future municipalities are to directly conduct the further expansion of renewable energy rather than it being part of local planning authorities, where it really belongs [
Some local authorities feel capable of coping with this task, as they, among other things, have the qualified personnel and the budget necessary to develop such a concept. The reason that other local authorities are showing some resistance is not so much reluctance or indifference. It is rather because the resulting costs for the development of such concepts pose a crucial problem, since these would amount to about 30.000 - 80.000 Euros at local authority association level, plus similar costs if the adjustment of the land development plan was to be outsourced. The resulting income of the generated wind energy primarily goes towards operators and farmers, and one must be allowed to ask why a local authority association, which often struggles financially itself, should not be the ones benefitting from this [
The Partial Adjustment of the LEP IV does not contain clear information regarding the questions that have arisen directly from it. In current literature, the deregulation of protected areas for the generation of wind energy is subject of great controversy, and there is no unanimous opinion on it. For that reason, the case example of the landscape conservation area “Eulenkopf and surrounding area” in the district of Kaiserslautern aims to illustrate how best to deal with the “new” planning control of wind turbines, and what risks as well as opportunities for local authorities are associated with the Partial Adjustment of the LEP IV.
Below, a general outline of the underlying boundary conditions is presented in order to illustrate the problems and the current legal stipulations.
Due to the planning management of wind energy generation in areas significant from a nature conservation point-of-view, there are various conflicts between nature conservation and climate protection. Depending on the category of protected area, these two are either contrary to the production of wind energy or can be overcome.
As this project is in the context of a landscape conservation area within the district of Kaiserslautern, it will be discussed in more detail below.
Landscape Conservation Areas are, according to national law, legally binding appointed areas that hold particular significance for the conservation of nature and landscape [
The regulation of Landscape Conservation Areas can be found in §36 of the Federal Law of the Protection of Nature (BNatSchG). Hereby three reasons arise for the need of protection:
Category | Prohibitions | Exceptions |
---|---|---|
Nature reserve | No changes allowed whatsoever | None, only with special justification |
Landscape conservation area | Relative prohibition of changes, adverse effect on the character of the area | If consistent with conservation aim and character of the area |
Natura 2000-area | Potentially inconsistent with preservation and conservation aim | Consistent with preservation and conservation aim, depending on the stipulation of the selected area |
Biosphere reserve | Depending on the zone, absolute or relative ban on changes | Depending on zone stipulation of nature reserve or landscape protection area |
Nature park | Depending on the zone, absolute or relative ban on changes | Depending on zone stipulation of nature reserve or landscape protection area |
1. “To maintain or restore the effectiveness and functionality of the ecosystem or the ability for regeneration and sustainable use of natural resources, including the protection of biotopes and habitats of certain species of wildlife, both fauna and flora,
2. because of the diversity, uniqueness and beauty or because of the special cultural and historic significance of the area or,
3. because of their importance for recreation” [
Therefore, landscape conservation areas are usually large sections of the countryside which have satisfied at least one of the three protective features mentioned. Thus landscape areas can be identified that are characterized by human use and also have an importance for nature conservation and landscape management, even though they do not have the prerequisites of a nature reserve [
In order to meet the ambitious goals of Rhineland-Palatinate of promoting wind energy in the coming years, pressure is rising in the selection of sites for wind turbines, as more areas will be required. This raises the question to what extent it is possible to set up wind turbines in landscape conservation areas, or whether these areas should be kept clear from such use. Numerous dissentients are arguing that wind turbines have a negative impact on the landscape, which suggests that wind turbines and landscape conservation cannot coincide.
However, areas subject to the conservation status of a landscape conservation area do not enjoy complete protection, but there is a change clause which prohibits actions which, according to § 26 Section 2 BNatSchG, alter the character of the area or run contrary to its special conservation aim. In accordance with § 26 Section 1 No. 1-3 BNatSchG, it is also prohibited to introduce foreign bodies, such as wind turbines, into the area. It is therefore the prevailing opinion that is not possible to derive a general exclusion of wind turbines in landscape conservation areas [
If the sole conservation aim of a landscape conservation area is that of conservation, development or restora- tion of the ecosystem’s productivity and efficiency in accordance with § 26 Section 1 No. 1 Federal Law of the Protection of Nature (§26 Section 1 No. 1 BNatSchG), it is possible to set up wind turbines but only if it is consistent with the conservation aim [
Changes in the area’s character are not permitted either, because the unique identity of the landscape must be preserved. If elements are added which are not in line with the features of the landscape in terms of their dimensions, height, material etc., then they are incompatible with the area [
The landscape conservation area Eulenkopf is located in the north-western district of the independent city of Kaiserslautern and extends over an area of 3550 ha, reaching across the districts of the association of munici- palities Weilerbach and Otterbach. The settlements of the municipalities Sulzbach, Frankelbach, Erzenhausen and Eulenbis all lie entirely within the landscape conservation area as
The landscape conservation area “Eulenkopf and surroundings area” was provisionally placed under protection in 1963 by the Rhineland-Palatinate rights of nature. On August 30, 1977, the regulation on the landscape conservation area “Eulenkopf and surrounding area” became final. The protected status was due to its characteristic landscape worthy of conservation, in which the typical character of this region is formed by cultivated landscape for agricultural and forestry use. These again are characterised by agriculturally used tablelands, numerous valley cuttings and slopes [
In the district of Kaiserslautern, wind energy is—with about 47%—the most subsidized form of renewable energy [
In 100 m above ground,
In 120 m above ground there are also mainly average wind speeds of 5.4 to 5.6 m/s. Wind speeds of 6.4 to 6.6 m/s occur very rarely [
Medium wind speeds from 5.2 to 6.0 m/s are expected in 140 m above ground. Only rarely do wind speeds reach 6.4 - 6.8 m/s [
In 160 m above the ground, wind speeds range from 5.8 to 6.0 m/s, although in individual areas wind speeds of 6.4 to 6.8 m/s can be achieved [
Legal regulation of the protected area defines the conservation aims of the characteristic landscape as quality of landscape, recreation as well as the protection of natural resources in accordance with § 3a-c of the landscape conservation regulation (LSchVO) Eulenkopf. All conservation aims have been fulfilled in accordance with § 36 Section 1, 1 - 3 Federal Law of the Protection of Nature. According to § 4 No. 1 LSchVO, it is not permitted to “erect or extend structural works of any kind”. However, an exemption may be granted if this would not compromise the conservation aim of the area or if it cannot be attenuated or adjusted by conditions or requirements (§ 4 Section 2 LSchVO Eulenkopf). If it is not possible to prove that the necessary measures of attenuation or adjustment can be provided within the proposed development, an exemption cannot be granted.
According to the current regional planning programme Westpfalz (Western Palatinate), landscape conservation areas such as “Eulenkopf and surrounding area” are among the excluded area categories. Thus they are not available for the erection of wind turbines [
Already in 2001, consideration was given to use the conservation area as a location for wind turbines. At that time, a land owner intended to build a wind energy plant with 65 m hub height in the district of Sulzbach. This plan was rejected by the country care authority of the district administration Kaiserslautern. In response, the owner submitted a lawsuit to the responsible administrative court in Neustadt a.d.W. This, however, confirmed the decision of the country care authority and considered it to be inadmissible to build wind turbines in that area, because it would contradict the conservation aim and would bring about a massive intervention into the cultivated landscape of this protected area [
Furthermore, the verdict also points out that the erection of wind turbines within the landscape conservation area must not be automatically approved, as wind turbines which have already been erected in the boundary area of the adjacent district Rothselberg in the district of Kusel, already provide a certain pollution level [
Since the proposed development contradicts the conservation aim, and no reduction, prevention or compensation of the adverse effects could be determined by constraints, the decision of the country care authority via the administrative court Neustadt a.d.W. was regarded as legitimate [
In contrast, the “Rundschreiben Windenergie” (Newsletter Wind Energy), which was published in Rhineland-Palatinate in 2013, states that on one hand it is possible to grant permissions and exemptions, if it is on grounds of overriding public interest [
At this point, it is not possible to interpret the judicature obviously. As a consequence, it is quite difficult, to inform the citizens and residents about the potential upcoming impacts of the development proposal.
Based on the Partial Adjustment of the LEP IV, the municipalities Sulzbachtal and Frankelbach and the association of municipalities Otterbach are planning a cooperation with the JUWI AG, which already operates a number of wind turbines in Germany, in order to make new advances towards the planning of new wind turbines in the landscape conservation area “Eulenkopf and surrounding area” [
The three municipalities Sulzbachtal, Frankelbach and Eulenbis, all of which are located in the landscape conservation area “Eulenkopf and surrounding area”, are in dispute over these proposed plans. The local authority Eulenbis is using the conservation area as a tourist destination and expresses great interest in the preservation of the landscape. The local authority of Sulzbachtal, on the other hand, can hardly benefit from its use as a tourist attraction because of its topographical location in the valley. Visitors tend to stay on the plateau of Eulenbis and therefore also mainly frequent the local gastronomy there. Thus, the municipality Sulzbachtal does not benefit but merely has to battle against the restrictions arising from the regulations of the conservation area [
However, the local population has mixed views towards the project. On the one hand there is the group of people that benefits from the landscape conservation area and therefore are against the setting up of wind turbines. On the other hand, supporters of the project can see no positive effect coming from the protected area or are even limited by its restrictions. Although no citizen initiatives have yet been formed, the mayor of Eulenbis, Mr. Bürgner, together with the local council, is very dedicated in his campaign against wind turbines.
In the course of fighting the construction of wind turbines, image manipulations were used to raise people’s awareness of the proposed plans and to visually bring forward consequences and impacts on a previously untouched protected area. For this, maps and graphical material was used to illustrate the locations and size of the different projected wind turbines.
To expand this procedure further still, and to inform as many people as possible about the serious consequences, the University of Kaiserslautern, or more specifically the teaching and research department Physical Geography, developed a way to make this illustration available for everyone via smartphone or tablet. By means of “Augmented Reality”, images with 3D models are overlaid by wind turbines. Previously, coordinates had been placed on those 3D models, in order to comprehend the planned future location as accurately as possible. In Augmented Reality “(...) real situations are equipped with additional digital information so that the relevant objects and items can enter into communication with computer systems. Thus, a conceptual design, generated as a computer graphic similar to a traditional photomontage, may be overlaid by inserting a real life situation. This can be done automatically by using a computer equipped with positioning technology (GPS-receiver), which executes the image overlay geometrically exact with regards to position and orientation” [
A clear advantage of this is the possibility that, firstly, the 3D models can be accurately assigned to the proposed locations using coordinates. Secondly, it is therefore also possible to simulate the exact height of the wind turbine and illustrate it on the screen of the mobile device.
For the simulation of this project, the application (abr.: app) “LayAR” is used, which is freely available on the platforms Android, iOS and BlackBerry. In addition, an adapted database is accessed, which was developed by the department Computer-aided Planning and Design Methods of the University of Kaiserslautern. Here coordinates are placed in a map and connected to the previously developed 3D model, which has a total height of about 200 m and is offered in
This can help interested citizens, as well as political decision makers, gain an impression of the extent of the impacts such a development would have, without having to actually carry out a project.
In practice, however, this type of illustration presented some problems difficult to exert some direct influence on. For example, it became apparent that the GPS sensors and gyroscopes (tilt sensors) of different smartphone and tablet manufacturers show differing accuracies. The consequence of this was that the models were in parts not positioned at the correct, predetermined coordinates, and therefore deviated from the expected positions. It is important to ensure that the devices are calibrated before use and the view of the sky is as unobstructed as possible, so that a high number of GPS satellites can be used for position determination. The more satellites are reached, the higher is the accuracy of the location.
Furthermore, it should be mentioned that it is not yet currently possible to display the shadow of the blades within the app, which would certainly be helpful in the illustrated case. The so-called disco effect of turbines of this size would for sure play a crucial role for local residents when looking at the impact on the public interest.
Another possible measure may be a marker-based illustration of the 3D models. These so-called markers, indicated in
directed at the marker. However, since one is situated directly at the location of the 200 m high wind turbine, a complete illustration is not possible.
It would, however, be conceivable to use this technique to develop a complete spatial 3D model of the municipality, in which house structures and roads, as well as the digital terrain model (DTM) are stored in addition to the wind turbines. If such a model was recorded on a marker, it would be possible to re-enact the overall effect on the screen of your smartphone or tablet from many different perspectives, such as the bird’s eye view.
Nonetheless, this illustrated method is not resorted to, as the implementation and the development of the 3D-models is too expensive and time-consuming. In addition, no clear statement can be made as to whether any current smartphones meet the requirements and whether a correct representation of the model can be guaranteed.
According to the shown up technology, it is possible for every citizen and resident, to illustrate the planned wind turbines on the display of mobile devices that are equipped with the required application and a camera. In this way, the user gets the opportunity, to demonstrate visually the upcoming planning intentions.
The proceedings regarding the examination of the locations of wind turbines within the landscape conservation area “Eulenkopf and surrounding area”, which were resumed due to the Partial Adjustment of the LEP IV, show that, despite the newly gained competencies of the communities, setting up wind turbines in protected areas remains difficult. The municipalities of Frankelbach and Sulzbachtal have so far merely initiated the adjustments in the land utilisation plan. What is still missing, however, is the request at the nature conservation authority of the district administration Kaiserslautern whether a concentration zone for the use of wind energy can be suc- cessful in the area of the landscape conservation area “Eulenkopf and surrounding area”. It is important to clarify the question whether the land utilisation plan stands much chance of being approved, taking into considera- tion legal aspects of immissions, and whether planning in this kind of area would be possible [
The aim of the landscape conservation area “Eulenkopf and surrounding area” is to preserve the typical char- acter of the area [
With regard to the exemption, however, it is to be referred to the conservation aim of the regulation. If this is in conflict with the project, no exemption shall be granted. In the event that seven 200 meter high wind turbines will be built, it can be assumed that this would lead to a technical overprinting of the landscape, which again would lead to a transformation of the cultivated landscape into a technologically shaped landscape [
1. Predominant public interest and,
2. an unreasonable burden (on an individual basis).
The existence of an unreasonable burden must be consistent with the interests of nature conservation in order to be worth a waiver. However, Dein certified that this is no atypical case of unintended hardship [
As it can currently not be assumed that an exemption or a waiver will be granted, a partial or full cancellation of the regulations of the protected area is seen as a last chance to revise planning of the protected area [
Thus it needs to be determined that the legal situation regarding the application of the regulation of the landscape conservation area “Eulenkopf and surrounding area” does not change because of the Partial Adjustment of the LEP IV. Wind turbines are not permitted in this area, as the construction is in opposition to the conservation aim. This would have a potentially negative impact on the landscape. The wind turbines are contrary to the conservation aim to preserve the distinctive and diverse landscape, as well as to the protection of general nature-orientated recreation (§ 3 Section 1a and c LSchVO Eulenkopf). A panoramic view is greatly disturbed by the construction of wind turbines, and lookout points with a good view into the far distance will lose their attraction for recreation seekers. Therefore, the compatibility of wind turbines within the core area of the protected area is to be classed as very low, as a deterioration of the circumstances is to be expected.
To date, the area does not exhibit any zoning, thus the conservation aims apply area-wide. In principle, by changing the protected area regulations, zoning, which allows implementing wind turbines in the predisposed border areas of the protected area, would indeed be conceivable. However it would be appropriate to aspire to attain an exemption for the entire protected area, as the conservation area is relatively small in size. The construction of wind turbines in the core of the area would lead to a significant deterioration of the landscape and could potentially result in the loss of its status being worthy of protection as well as its unique features. Furthermore, the wind speeds within the area are even below the economic limit, meaning that the location cannot be classed as particularly suitable. The Partial Adjustment of the LEP IV stipulates that especially areas with good wind conditions are to be given priority, which is not met in the landscape conservation area “Eulenkopf and surrounding area”. Moreover, wind turbines are not tied to a location, thus excess planning of the protected area is not imperative, as there are plenty of areas in the district of Kaiserslautern, which are outside the protected area and exhibit good enough wind conditions. These areas should therefore be favourably considered for the use of wind energy.
Should the JUWI AG, as well as the surrounding municipalities of Sulzbachtal and Frankelbach, still wish to proceed with their plans, it will be in their duty to provide citizens with enough information about the consequences of the construction of wind turbines, and to raise their awareness so that they gain an impression of what an implementation of wind turbines would mean for the landscape conservation area “Eulenkopf and surrounding area”. Although it is on the one hand understandable that, due to their financial situation, local authorities need to balance their budgets and improve their economic outlook, but on the other hand neither nature itself nor affected citizens should be excluded from this decision.
Using the illustration of the proposed wind turbines in the form of 3D models, it is possible to provide laymen with a tool which allows them to gain a better idea of the proposed plans, which, above all, aims to expand the conventional type of comprehensive plans with an additional illustration method. For this, no explicit expert knowledge is necessary in order to get one’s bearings on maps or plans, and to understand proposed plans. Rather, it can even be simulated right on-site, where future plans of wind turbines are to be implemented.
Due to the demonstrated legal position, it is actually fairly difficult, to make a prediction concerning about the planning purposes. It indicates that the Partial Adjustment of the State Development Programme IV (LEP IV) will still be opposed to a great number of legal obstacles, whereby a contemporary execution of the project is hard to imagine.