Intervention regulation in Germany

The intervention regulation (also intervention compensation regulation ) is the most important instrument in German law for the enforcement of nature conservation issues that apply in the "normal landscape ", i.e. also outside areas protected by nature conservation law . The basic idea is a general ban on the deterioration of nature and the landscape.

The intervention regulation is intended to avoid and minimize the negative consequences of interventions in nature and the landscape (impairments). Furthermore, unavoidable interventions should be compensated for by nature conservation measures.

The most important legal bases are §§ 14 and 15 of the Federal Nature Conservation Act (BNatSchG) and §§ 1a and 35 of the Building Code (BauGB). Details can be found in the nature conservation laws (landscape conservation laws, etc.) of the federal states.

When the new Federal Nature Conservation Act came into force in March 2010, the legal basis of the intervention regulation changed. Before the Federal Nature Conservation Act was a framework law , the actually binding legal provision was the Nature Conservation Act of the respective federal state. The federal law itself is now the legal basis.

The procedure for applying the intervention regulation is laid down in Section 17 BNatSchG. For all projects that already require approval by an authority due to other legal provisions, the procedure is carried out by the competent authority in consultation with the competent nature conservation authority (i.e. with their almost mutual participation , but no veto function). This is known as the “piggyback process”. If an intervention does not require any other official approval, no carrier procedure is available for the intervention regulation and the nature conservation authority decides independently. This also applies to projects that are otherwise not subject to approval, provided that they are interventions within the meaning of the law. The applicant must, without being requested to do so, submit all necessary documents to the authority, in particular regarding the type and severity of the planned intervention and the planned compensatory measures. The authority may request special reports for this. In the event of interventions due to specialist planning (in particular: in the case of plan approval), it must request such an expert opinion.

In urban land use planning, the intervention regulation has been part of the overall urban planning process since the so-called building law compromise . Intervention and compensation should be integrated into an overall concept.

Definition of intervention

The concept of interference is defined in Section 14 (1) BNatSchG . The content is:

"Interventions in nature and landscape within the meaning of this law are changes in the shape or use of areas or changes in the groundwater level associated with the living soil layer, which can significantly impair the performance and functionality of the natural balance or the landscape."

In the case of projects that represent such an intervention, there are two opposing interests: on the one hand, the interest of the developer in the implementation of his project, on the other hand, the interests of nature and landscape protection (here in particular: the lowest possible "consumption of nature and soil" ). As an indefinite legal term, the authority has to decide whether a certain project constitutes an interference at all . As a rule, lists of typical projects are in use, where an intervention within the meaning of the law is regularly assumed for the projects listed on them. The state laws - z. B. the Landschaftsgesetz NRW (LG NRW) - regulate in detail which projects (road construction, commercial settlement) count as interventions or are generally not to be regarded as interventions. In some places, this is done through sub- statutory regulations ( statutory ordinance ). The severity of the intervention and (associated with it) the scope and costs of the compensation measures are more often in dispute.

Agricultural privilege

The use of land for agriculture, forestry and fishing is not to be regarded as an intervention, provided that the objectives of nature conservation and landscape management are taken into account. This is regularly the case when the requirements for good professional practice are met. These requirements result from Section 5 Paragraphs 2 to 4 BNatSchG, the principles laid down in Section 17 Paragraph 2 of the Federal Soil Protection Act and the relevant specialist law. The aim is to exempt the farmer's “daily management”, i.e. the recurring and continuation of tillage, from regulations under nature conservation law. According to this, a farmer can plow his field without obtaining a permit, while he needs a permit to plow his meadow.

Compensation obligation

Information board for the Green C project on a compensation area for road and path construction measures in Alfter , North Rhine-Westphalia

The impairments of nature and landscape resulting from the intervention are to be compensated for functionally, or other equivalent improvements are to be made. The priority of (functional) compensatory measures over substitute measures (taken elsewhere or in favor of other natural assets), which was previously anchored in the law, no longer applies with the 2009 law.

A tiered regulation, as provided by the BNatSchG, is also anchored in US environmental law. An almost identical procedure applies to projects that represent or result in interventions in certain areas worthy of protection. The fact that only wetlands (according to Section 404 of the Clean Water Act) and habitats of certain protected species (according to the Endangered Species Act) are protected in this way is due to the rather selective approach of US nature conservation law.

Avoidance and minimization requirement, prohibition

One distinguishes between

"Avoidable" negative effects (impairments) and
“Unavoidable” effects (dto.).

Avoidable impairments must be avoided. Unavoidable impairments must be minimized as much as possible. In order to avoid impairments, the corresponding specialist planning often provides for protective or mitigation measures. Examples: Individual trees must be preserved during the construction project. These must be specially protected during the construction phase. If impairments remain, they must be compensated ( Section 15 BNatSchG); high demands are attached to exceptions.

The state laws regulate the details. In most cases, it is not a question of whether an intervention itself would be avoidable. A prohibition of the intervention in the course of the intervention regulation is theoretically covered by law, but in practice only possible in a roundabout way (legal deficiency, breach of law) and therefore only implicitly. In practice, such obstacles are mostly removed in the planning process (the planning is modified).

Compensation measures

Compensation for the impairments can be achieved:

through compensation ( compensation in the spatial and functional context ): The impaired function of the ecosystem is promptly improved at the same location through another measure. Example: Sealing a new road reduces the formation of new groundwater . In the immediate vicinity, an old road is being dismantled on the same area ( demolition ). The same amount of rainwater can seep away, the impairment of the function is compensated.

through replacement ( compensation through generally non-functional, but "equivalent" measures in a spatial context, only in difficult cases not in a spatial context. ): Nature and landscape are improved elsewhere (far away) or another function is implemented in upgraded nearby. Instead of dismantling, for example, trees are planted or dismantling takes place elsewhere. However, trees can also be planted elsewhere. Replacement measures should be consistent with the relevant landscape planning .

Compensation and replacement measures are often summarized as compensation measures.

In practice, the biggest problem when implementing the compensation measures is often that the corresponding land is not available. Since the person who caused the interference is responsible for the compensation, he (and not the authority, for example) must also provide these properties. If he cannot do this, so-called area pools offer a way out ( § 16 BNatSchG stockpiling of compensation measures). Compensation areas and measures can be combined in such pools. The generic term "pools" is implemented in various forms:

Areas that are suitable for compensation measures can be summarized in cadastres. In this case, the suitability and availability of the areas are usually checked in advance, but no concrete steps have yet been taken to implement the measures. A spatial connection between the areas is not absolutely necessary
Areas - mostly contiguous - can already be secured for compensation measures, e.g. B. through acquisition. The aim here is often to enable complex nature conservation measures on contiguous areas
If compensation measures are carried out in advance on pool areas, this is referred to as "area and measures stockpiling".

Pools have been a much-discussed concept in nature conservation since the 1998 amendment to the BauGB, which started a discussion about making the intervention regulation more flexible. There are now a number of practical examples and institutions (e.g. regional agencies) that are developing pools for intervention regulation.

Compensation payment: In exceptional cases , interventions with non-compensable impairments can be compensated by a compensation payment ( Section 15 (6) BNatSchG). This is only permissible if no other compensation is possible. The amount of the replacement payment must be based on the average costs for the compensation measure saved (with all additional costs).

Procedure of intervention regulation

The intervention regulation is applied in a sequence of individual, factually delimited, successive work steps that result from the questions and the inspection order of the intervention regulation.

procedure

Step 1: Determination of the area likely to be affected by the planned intervention.
Which room is likely to be affected by the planned construction project?
Step 2: Recording and evaluating nature and landscape in the area affected by the intervention.
What significance does the nature and landscape of this area have for nature conservation and landscape management?
Step 3: Determination and evaluation of impairments to the efficiency of the natural balance and the landscape through the planned intervention.
Can nature and the landscape be affected by the planned construction project?
Step 4: avoiding interference.
Can these impairments be avoided and what precautions are necessary to avoid them?
Step 5: Minimizing the impairments: How can unavoidable impairments be minimized?
Step 6: Determination of the compensability of significant impairments and determination of compensatory measures or substitute measures.
Can the unavoidable significant impairments be compensated and what compensatory measures are necessary? Which substitute measures are necessary for the impairments that cannot be compensated?
Step 7: Comparison of impairments and precautions for avoidance, compensation and replacement measures.
Are the consequences of the intervention managed in accordance with the obligations of the intervention regulation?

The legislature does not prescribe any specific procedure for evaluating the consequences of an intervention. In practice, the polluter (as a rule, the expert commissioned by him) is often advised by the nature conservation authority to use a certain assessment procedure. The consequences of the intervention can be weighed up by means of a free description ( verbal-argumentative ) or by using a formalized assessment procedure (in practice the rule), usually of the type of a biotope value procedure .

Regulations for use in land-use planning

The intervention regulation in the building code

According to § 18 BNatSchG, the intervention regulation for land-use plans (i.e. essentially zoning plans and development plans) is to be decided in accordance with the provisions of the Building Code. The basis for the intervention regulation in the land-use planning is § 1a BauGB. The intervention regulation is therefore to be provided within the framework of the justification of the respective plan. According to § 2a BauGB, the designated location is the environmental report.

Zoning plan

Since the Investment Facilitation and Housing Land Act 1993 came into force (Art. 5), which was intended to shorten the planning and approval procedures, the intervention compensation regulation in the populated area is no longer used in individual building permit procedures in order to accelerate these procedures.

The engagement compensation control is on the level of the development plan (B-Plan) shifted forward, even at setting up and modification of B-Plan as part of the bauleitplanerischen weighing apply and not only at its realization by concrete construction projects. This is to ensure that the interests of nature conservation are not neglected despite the relaxation of planning requirements for individual construction projects. The necessary compensation measures are bindingly determined as a result of the development planning process. This includes stipulations in accordance with Section 5, Paragraph 2, No. 10 (definition of areas in the land use plan) and Section 9, Section 1a (definition of areas in the development plan) BauGB.

Compensation measures should be implemented by the client at the latest when the planning is implemented. If compensation measures have been relocated to public areas, the municipalities can pass the costs on to the building owners ( Section 135a BauGB) (polluter pays principle). Whether compensation measures are included in the development plan as a representation or via an urban development contract in accordance with § 11 BauGB are carried out depends on the overriding, binding local goals. These goals are listed in the zoning plan (or in the landscape plan, if it is legally binding: a matter of the state). If compensation cannot be made (ultimately a political decision) and if this does not contradict the goals of higher-level planning, the issues that take priority are weighed up within the framework of Section 1 of the Building Code.

Consideration requirement in the land-use planning

A prerequisite for a fair weighing of public interests is that three essential requirements are met: (1) the issues relevant to the decision (i.e. the facts) must be sufficiently determined, they must (2) be weighted according to their importance and (3) the different and often opposing private and public concerns are brought into an appropriate relationship to one another. There is, however, planning leeway to give preference to a certain solution in the collision of different concerns and interests and thus necessarily to put other interests aside. If individual protected assets or concerns are not examined or not mentioned at all without a plausible explanation, this can lead to a "weighing error". A deficiency is also present if the compensation measures proposed by the landscape planning department are rejected as not feasible without a serious examination of the feasibility.

Scope of the zoning plan

The zoning plan ( Section 5 BauGB), which is part of the zoning plan as a preparatory land-use plan, cannot stipulate any stipulations; it represents the needs of the community and can therefore represent areas for compensation areas (Section 5 (2a) BauGB).

Scope of development plans

In the area of application of development plans according to § 9 BauGB (content of the B-Plan), § 12 BauGB (project-related development plan), § 13a BauGB (development plan for interior development), § 30 para. 1 BauGB (requirements for a so-called qualified development plan) and § 33 para. 1 BauGB (so-called planning maturity) as well as in the inclusion statute, which is equivalent according to § 18 para. 1 BNatSchG according to § 34 para. 4 sentence 1 No. 3 BauGB, the intervention regulation has already been moved forward to the planning process; the respective plan already represents the intervention.

Indoor projects (§ 34 BauGB)

In the context of built-up districts according to § 34 BauGB , the so-called interior area (areas within settlements, which are mostly marked as building areas in the zoning plan ), where there is no development plan, the intervention regulation for projects does not apply (§ 18 para. 2 BNatSchG ).

This means that on a completely undeveloped plot of land according to § 34 BauGB, new development is permitted that is based on the character of the area. Representations of the land use plan and other planning regulations must be observed. The building authority informs the responsible environmental authority (usually the lower nature conservation authority ) of the project. The nature conservation authority has a period of 4 weeks to comment on the project. If she does not comment, a decision will be made “according to the files”.

The enforcement options of the nature conservation authority hardly extend to the intervention regulation because this does not apply (see above), but only to other areas of nature conservation (e.g. species protection; legally protected biotopes - § 30 BNatSchG).

Territorial character

The character of the area is based on the development of the area. The character of the area can be shaped by various features. As a rule, it is the type and extent of structural use , e.g. B. Residential and commercial as a type, floor area and built-up property area as a measure ( see also Building Usage Ordinance (BauNVO) ). However, other essential design features of the neighboring development, such as roof shapes, which could also be specified in the development plan, can define the character of the area. This always refers to relatively uniform areas in which an abstraction of the characteristics is possible. A very inhomogeneous area is to be treated like an outside area if no features can be abstracted. There are different judgments, comments and approaches in individual cases.

Outdoor projects (Section 35 BauGB)

In the outdoor area according to § 35 BauGB (outside of the built-up districts; cf. § 34 Para. 1 BauGB), stricter conditions apply to construction projects before the intervention compensation regulation is applied. A distinction must be made between privileged uses (Section 35 (1); e.g. agriculture), changes of use, extensions or replacement buildings with more stringent requirements (Section 35 (4)), outdoor by-laws (Section 35 (6)) and individual approvals (Section 35 para. 2). Even if the projects permitted according to Paragraphs 1 to 4 according to Paragraph 5 Clause 1 are to be carried out in a manner that saves space, limits the soil sealing to the necessary extent and protects the outside area , the interference-compensation rule is usually to be applied, also with the ( Outdoor area statutes according to Paragraph 6, which are not covered by the above provision, as an intervention takes place (except e.g. in the case of pure conversion of buildings). In contrast to the development plan or the statutes according to Section 34 Paragraph 4 Clause 1 No. 3 (inclusion statute) with the preceding intervention regulation, this is done here for the respective building project.

compensation

Section 200a of the BauGB defines the prerequisites for a temporal, spatial and functional decoupling of compensations. The temporal and spatial decoupling enables the introduction of “ eco-accounts ”. They mainly serve to be able to provide compensation measures in order to react more quickly to investment requests. The eco-account should not serve to carry out compensations from the outset in a spatially and functionally decoupled manner. A decoupling is only permitted as long as itdoes not contradictthe (local) binding goals of the landscape planning , set in the landscape plan, or the stipulations and goals (also textual goals) of the overarching planning. This is particularly important in areas of urban overheating, with regard to groundwater protection and also with regard to the provision of open spaces .

Different procedures are used to determine the compensation measures. Mostly it is a question of procedures of the type of biotope value procedure .

Deviating regulations

Depending on the country and type of project, more extensive regulations may apply (state nature conservation laws). They can also enable compensation payments for impairments that cannot be compensated . Other nationwide deviations are:

spatially significant planning (mining, wind energy, etc., trunk roads are subject to the Environmental Impact Assessment Act )
Areas that meet the criteria of the Fauna-Flora-Habitat Directive , regardless of whether they have been formally registered or not: alternatives are to be examined over a wide area. Impairments to FFH areas are not amenable to structural planning considerations. The decision cascade for the assessment of alternatives for Natura 2000 areas is regulated in the Federal Nature Conservation Act (BNatSchG).
Specially protected biotopes in accordance with Section 30 of the Federal Nature Conservation Act or the state nature conservation laws, regardless of their reporting status, must be given special consideration when weighing up (federal law breaks the statutes!).

criticism

The intervention regulation is exposed to numerous criticisms at all application levels. Several scientific studies show that the implementation is very poor. A relatively high percentage of the actually legally binding compensation obligations are not met. A case study in southern Germany found that almost 30% of the 124 legally binding compensatory measures examined could not be found in the landscape. In addition, a significantly larger proportion of the compensation areas do not have the quality required / desired in terms of the legislature and nature conservation. The intervention regulation could not stop the high land consumption in Germany (around 60 ha / day of new settlement and traffic areas). Conceptually, it is only suitable to a limited extent, as surface sealing can also be compensated for by upgrading an orchard meadow, for example.

The following additional points of criticism can be found in the literature (selection):

There is in fact no control body for the compensation areas. The lower authorities are formally responsible for checking the correct implementation of the compensation obligation. However, due to the enormous workload, these can in fact not meet these requirements, so that grievances are not known and not remedied. There is also no control of the correct maintenance of compensatory measures in need of care (e.g. regular pruning of orchards that were created in the course of the compensation obligation).
In general, the care obligation for compensatory measures only applies for reasons of proportionality (depending on the federal state) for 25–30 years. Compensatory measures in need of care, which comprise the vast majority of all measures, are no longer required to be maintained after this period of time and will therefore probably be degraded in many cases in terms of nature conservation. On the other hand, the intervention will usually far exceed this period - this is especially true for surface sealing.
The assessment of the interference and the compensation obligation is usually carried out in the interests of the intervener, who is also the financier (e.g. when creating new development areas in the municipal settlement area). This tends to reduce the real compensation to be provided. This leeway is legal.
The numerous compensatory measures are z. B. not coordinated between the municipalities and thus do not develop their potentially possible positive effect in terms of the biotope network.
The legal and formal requirements of the encroachment compensation regulations are no longer technically comprehensible even for nature conservation experts, which makes monitoring and implementation considerably more difficult.
Especially in the case of punctual compensation with a two-dimensional effect (e.g. construction of fish ladders, removal of walls) as a special case of fulfilling the compensation obligation, a large number of points are often credited to the (advanced) compensation account. This means that these points can be offset against a possibly disproportionately large intervention.

literature

W. Frenz, H.-J. Müggenborg (Ed.): Federal Nature Conservation Act: Comment. 2nd Edition. 2011, Erich Schmidt Verlag, Berlin 2016, ISBN 978-3-503-16366-3 .
J. Schumacher, P. Fischer-Hüftle (Ed.): Federal Nature Conservation Act - Commentary 2nd edition. Verlag Kohlhammer, Stuttgart, 2010, ISBN 978-3-17-021257-2 .
J. Köppel, U. Feickert, L. Spandau, H. Straßer: Practice of the intervention regulation - compensation for nature and landscape? Verlag Eugen Ulmer, Stuttgart 1998, ISBN 3-8001-3501-9 .
W. Breuer: Success control for compensatory and replacement measures. In: Information service for nature conservation in Lower Saxony. 13 (5), 1993, pp. 181-186.
S. Wagner: Eco accounts and area pools. The legal basis, possibilities and limits of the stocking of areas and measures as compensation methods within the framework of the intervention regulation in urban planning law. Duncker & Humblot, Berlin 2007, ISBN 978-3-428-12402-2 .
Werner Dieter Spang, Sven Reiter: Eco accounts and compensation area pools in urban land use planning and specialist planning. Erich Schmidt Verlag, Berlin, 2007, ISBN 978-3-503-09034-1 .
Arno Bunzel, Daniela Michalski: Nature and landscape in the conversion of military properties. German Institute for Urban Studies . Berlin 2012, ISBN 978-3-88118-509-7 .

Web links

Individual evidence

↑ ^a ^b ^c ^d ^e ^f ^g Jessica Rabenschlag, Nicolas Schoof, Jochen Schumacher, Albert Reif: Evaluation of the implementation of building law compensatory measures . No. 51 . Nature conservation and landscape planning, 2019, p. 434-442 ( researchgate.net ).

↑ ^a ^b Beate Jessel R. Rudolf, U. Fleickert., U. Wellhöfer: Follow-up controls in the intervention regulation - experience from 4 years of control practice in Brandenburg . No. 12/4 . Nature conservation and landscape management in Brandenburg, 2003, p. 144-149 .

↑ ^a ^b S. Ecker, U. Pröbstl-Haider: Success control of compensation areas in the context of urban land use planning in Bavaria . No. 48/5 . Nature conservation and landscape planning, 2016, p. 161-167 .

↑ ^a ^b ^c ^d Beate Jeuther, Elisabeth Schubert, Reinhold Hettrich, Anne Ruff, Evelyn Gussmann: Evaluation of the Ökokonto -ordnung Baden -Württemberg. (PDF) November 22, 2018, accessed on August 23, 2019 .

Remarks

↑ For example, in the Rhineland-Palatinate state ordinance on the determination of interventions in nature and the landscape ( memento of December 8, 2015 in the Internet Archive ) of December 19, 2006.

[:0-2] ↑ ^a ^b ^c ^d ^e ^f ^g Jessica Rabenschlag, Nicolas Schoof, Jochen Schumacher, Albert Reif: Evaluation of the implementation of building law compensatory measures . No. 51 . Nature conservation and landscape planning, 2019, p. 434-442 ( researchgate.net ).

[:1-3] Beate Jessel R. Rudolf, U. Fleickert., U. Wellhöfer: Follow-up controls in the intervention regulation - experience from 4 years of control practice in Brandenburg . No. 12/4 . Nature conservation and landscape management in Brandenburg, 2003, p. 144-149 .

[:2-4] S. Ecker, U. Pröbstl-Haider: Success control of compensation areas in the context of urban land use planning in Bavaria . No. 48/5 . Nature conservation and landscape planning, 2016, p. 161-167 .

[1] For example, in the Rhineland-Palatinate state ordinance on the determination of interventions in nature and the landscape ( memento of December 8, 2015 in the Internet Archive ) of December 19, 2006.