§ 35 BauGB for Wind Turbines

§ 35 BauGB is the central building planning law norm for wind energy. Since 1996, wind turbines have been privileged projects in outdoor areas. The WaLG reform 2023 fundamentally changed municipal control via concentration zone planning.

What does "privileged" mean?

In outdoor areas (= outside development plans and connected built-up areas), projects are generally impermissible. Privileged projects under § 35 para. 1 are an exception — they may be erected if no public interests oppose.

For wind turbines this means: permit entitlement in the outdoor area, provided the public interests (noise, shadow, species protection, landscape) can be managed through conditions.

Concentration zone concept (pre-WaLG)

Municipalities could designate concentration zones for wind energy in their land-use plan. Effect:

• Inside the concentration zone: wind turbines privileged
• Outside the concentration zone: exclusion effect — wind turbines regularly impermissible
• Prerequisite: substantial space for wind energy in the plan, otherwise null and void

The WaLG reform — what changed in 2023

The Wind on Land Act (WaLG) obligates the federal states to designate 2.2 % of their land area for wind energy by 2032 (interim target 1.4 % by 2027). If the target is not met:

• Exclusion effect of concentration zones lapses — wind turbines may also be built outside zones where privileged
• Sanctions mechanism motivates states toward timely designation
• Acceleration effect for project planners: sites outside concentration zones become permittable again

Decision tree § 35 BauGB — privileged status, concentration zones and WaLG reform 2023

Requirements under § 35 para. 1 Nr. 5 BauGB

1. Privileged status: given for "wind energy" as an explicitly named installation type
2. Outdoor area location: outside the inner/connected built-up area
3. No opposing public interests (noise, shadow, species protection, landscape, traffic — all subject to expert reports)
4. Adequate infrastructure: road access + grid connection possible
5. Permanent structural safety + decommissioning obligation at end of life
6. Location within concentration zone (if zoning plan is effective)

Decommissioning obligation

§ 35 para. 5 BauGB obligates the operator to completely decommission the installation after end of use. Specifically:

• Turbine fully dismantled
• Foundation removed (possibly to 1.5 m below ground level)
• Crane pad and access road re-naturalized
• Decommissioning bond: usually EUR 100,000–200,000 per turbine as security

Relationship to BImSchG procedure

For turbines above 50 m total height, BImSchG is the superior procedure — the building planning review under § 35 BauGB is handled as part of the BImSchG permit. A separate building permit is not needed.

Common Questions

What about pre-WaLG concentration zones?

They remain fundamentally effective — until the federal state misses its land area target. Then the exclusion effect of those zones lapses, and wind turbines are privileged outside as well.

What does a permit cost purely for § 35 BauGB?

Since the review runs within the BImSchG procedure, no separate fees apply. The total BImSchG costs include the § 35 review.

How does this affect repowering?

Repowering at existing sites is facilitated: the existing development demonstrates that the site choice is planning-law feasible. Even with tightened concentration zones, existing sites usually remain possible ("site commitment").

What about nature conservation / bird protection areas?

Protected areas are an independent public interest under § 35 para. 3 BauGB. Location in or near protected areas can make even privileged projects impermissible — see FFH assessment and species protection expert reports.