With the 2024 amendment to the Federal Immission Control Act, the legislator had one main goal: to drive forward the expansion of wind energy. Authorisation procedures are to become faster and simpler. In particular, a new procedure was introduced for changes to wind turbines that have already been approved but not yet erected, which provides for significantly fewer inspections if certain requirements are met.  

However, administrative practice in the state of Brandenburg has so far been different: The Ministry of Agriculture, Food, Environment and Consumer Protection still required other specialised authorities to give their approval. The Higher Administrative Court of Berlin-Brandenburg has now overturned this practice in two judgements and provided significant clarification on the new procedure for simplified modification approval (Ref.: 7 A 47/24 and 7 A 51/24 of 25 March 2025).

The focus was on the question of whether, in the case of minor changes to approved but not yet erected wind turbines, new concentrated approvals in accordance with Section 13 BImSchG must be obtained in the same way as building permits and how to deal with non-concentrated approvals, for example under aviation law.

Concentration effect of the exit authorisation continues to apply

The court has now clarified that an amendment permit, together with the original immission control permit, continues to have the concentration effect in accordance with Section 13 BImSchG. This means that the original authorisations, for example a building permit or a forestry permit, also continue to apply to the slightly modified plant. The decisive factor is that the modification permit merges with the original immission control permit and remains a uniform administrative act - despite the reduced inspection programme.

For the legislator, the acceleration of projects is paramount. To this end, it is prepared to accept any infringements of the law or minor deviations. This is also how the OVG interpreted the will of the legislator.

No new approval required under aviation law

The situation is different with approvals under public law, such as the approval under aviation law pursuant to Section 14 (1) LuftVG. This is not subject to the concentration effect under Section 13 BImSchG, but is governed by its own specialised law.

The OVG has now made an important clarification here that is particularly relevant in practice: Provided that the overall height of the installation does not increase by more than 20 metres, approval under aviation law is not required. Approval as part of the original authorisation is sufficient.

The court refers to the wording of the law to justify its decision. According to this, in the simplified procedure exclusively The site safety of the plant, harmful environmental impacts due to noise and adverse effects due to turbulence must be examined (Section 16b (8) BImSchG); aviation law issues are not mentioned.

Stock testing is also not permitted

With its two decisions, the OVG has provided more legal certainty as to the extent to which reviews must be carried out in the simplified amendment procedure. It leaves no doubt that neither concentrated authorisations nor approvals outside the concentration regime - for example under aviation law - need to be obtained again. This means that the procedure is finally becoming the instrument that the legislator intended it to be: a clearly defined, accelerated amendment procedure with a strictly limited review programme. The simplification of the procedure intended by law can thus become effective in practice.

Against this background, the attempts of individual authorities to be unlawful, to „increase the requested turbine height by 20 metres“ as early as the admissibility check in the initial proceedings in order to anticipate later changes. This is how the German Armed Forces recently proceeded when their approval was required under aviation law - for example due to the proximity to military airports. Such examinations in advance are an inadmissible attempt to circumvent the law and would thwart the intention of the legislator.