German farmer triumphs over state in wind turbine row
September 14, 2018
The Federal Court of Justice's (BGH) civil chamber ruled Friday in favor of a farm owner in eastern Mecklenburg-West Pomerania state who was facing hefty surcharges or even worse over his plan to have three turbines erected by an operating firm.
The farm owner's adversary was the federal BVVG agency, based in Berlin and created in 1992 to privatize but safeguard farm and forestry soils in Germany's five eastern states — lands previously owned by Soviet-era collectives.
Farm sector lawyers had argued that Germany's constitutional right to own property must be upheld and that farmer involvement in renewable energy projects should not be hampered by the special land sales rules dating back to German reunification.
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Usage not altered
The Karlsruhe-based court said the turbines' siting would not alter the overall agricultural usage of the 71-hectare (175-acre) farm nor violate special disincentives built into the 2005 purchase contract.
Therefore, the BVVG was not entitled to skim off 75 percent of future power earnings paid by the turbine operator to the farm owner or even exercise a "right of repurchase" by invoking the Area Acquisition Decree applicable in Germany's eastern states, it ruled.
Such a claw-back would not be "triggered," even it the BVVG exercised its power to approve wind turbines on the farm, it said.
Such a provision was "invalid," said the court, referring to BVVG sales contracts requiring that such former collectives' cropping areas and pasture be kept running as farmland for at least 15 years.
The Federal Court said wind power generation was a "privileged" activity anyway under German construction law.
The three turbines would span only 1.4 percent of the farm's area, it observed.
In an initial reaction to the ruling, the BVVG said it feared "substantial financial repercussions" if similar farms with wind turbines demanded returns of surcharges they had already paid.
Privatization of land in former East
Since German reunification, the federally-owned BVVG has privatized 861,000 hectares of farmland in the five states.
More than half of this (440,000 hectares) has been sold at lower prices under Germany's 1994 Indemnification and Compensation Act (Ausgleichsleistungsgesetz) for property injustices blamed on former East Germany.
The BVVG sales - by auction - have been aimed at former landholders dispossessed under post-1945 agrarian reforms as well as leaseholders who during the communist era were unable to purchase collectivized lands they farmed.
The BVVG has also handled sales of a further 475,000 hectares of forestry land across eastern Germany.
The agency says an advertised lot usually goes to the highest bidder, except for blocks designated for young farmers, vegetable growers, businesses with a strong ecological orientation, and for nature conservation purposes.
Wind power in Germany
Germany now has 28,675 land-based wind power plants, according to the German Wind Energy Association (BWE).
Many are located along Germany's North Sea and Baltic Sea coastlines. Offshore, Germany has a further 1,169 plants.
A third are already relatively old and will need to be replaced by 2023.
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