Project developers may accept ancillary provisions imposed by the authorities and later take legal action against their abolition if their application for authorisation would otherwise be in danger of failing. This is the result of a judgement by the Berlin-Brandenburg Higher Administrative Court (OVG) (Ref.: OVG 7 A 44/24 of 04.03.2025).

This case concerned shutdown measures that the licensing authority made a condition of the licence. However, the project developer represented by DOMBERT Rechtsanwälte did not consider these to be technically necessary and filed a complaint against them after receiving the authorisation. The approval authority took the view that a main application - aimed at approval without ancillary provisions - and an auxiliary application - aimed at approval with the inclusion of a corresponding ancillary provision - were already required in the approval procedure.

The court took a different view: It confirms that it does not oppose an actionif a shutdown measure is initially included in the application documents - under protest - by the project sponsor in the immission control approval procedure at the insistence of the approval authority in order to obtain approval under immission control law. According to the court, a later action against the shutdown measure remains admissible even if the protest is already sufficiently clearly expressed in the authorisation procedure.

Lawyer Natalie Carstens welcomes this clarification from the court: „Project developers have a right to be burdened only with necessary ancillary provisions.“