17.11.2016
[Hamburg, ] In its judgments of 10 November 2016, the Federal Administrative Court wholly rejected the actions, brought by the environmental association BUND and a wind farm operator, against the planning consent granted by Lower Saxony for the construction of the new A20 motorway as a tunnel under the Elbe, between Drochtersen and the state boundary with Schleswig Holstein (Federal Administrative Court 9 A 18.15, Federal Administrative Court 9 A 19.15). In parallel proceedings on the Schleswig-Holstein side of the tunnel, the action brought by the environmental protection associations in April was partially successful, as a result of which the issues relating to water protection must now be re-examined there.
In the Lower Saxony proceedings, the Federal Administrative Court rejected the plaintiffs’ objections to the nature and scope of the public consultation, with regard to both the planning permission and the regional planning procedure. Neither the removal of the initially planned motorway junction and the associated reduction in the scope of the proposal, nor the technical report on the special demands of the Water Framework Directive compiled during the planning permission process, required a new comprehensive public consultation, the Court decided. The simple reduction in the scope of the proposal did not change its identity and the technical report on the Water Framework Directive merely provided further depth and substance to the investigations that had already been conducted.
The Federal Administrative Court also rejected the objections of the plaintiffs to the planning permission decision on grounds of content. Aside from environmental protection and the protection of species, the focus of the debate in the oral proceedings was on matters of water law: in the judgment of the Federal Administrative Court, no fault was found with the steps taken by the Lower Saxony Road & Transport Authority in relation to the small bodies of water affected. In this respect the Court relied essentially on the CIS Guidance Documents published by the European Commission. With regard to the complex issues of process water arising from tunnel construction, the Federal Court also considered it permissible to shift this dispute into the Schleswig Holstein planning permission decision.
The Lower Saxony Minister of Economic Affairs, Labour and Transport was “delighted” to note the decision of the Court. Once the necessary supplementary process on the Schleswig-Holstein side is completed, no legal obstacles will remain to the realisation of the construction project of the century – the Elbe crossing at Glückstadt-Drochtersen.
Representatives of the Lower Saxony Road & Transport Authority
GÖRG Partnerschaft von Rechtsanwälten mbB
Kersten Wagner-Cardenal (Hamburg)
Prof. Dr. Ulrich Ramsauer (Hamburg)
Dr. Henning Wendt (Hamburg)
Dr. Marie Ackermann, LL.M. (Hamburg)
Representatives of BUND
Mohr Rechtsanwälte Partnerschaftsgesellschaft mbB
Rüdiger Nebelsieck, LL.M. (Hamburg)
Jan Mittelstein, LL.M. (Hamburg)
Dr. Sara Jötten (Hamburg)
Representatives of the wind farm operator
Büsing, Müffelmann & Theye Rechtsanwälte in Partnerschaft mbB und Notare
Dr. Claudia Nottbusch (Bremen)
Ronny Grunewald (Bremen)
Representatives of the Schleswig-Holstein Road & Transport Authority
Graf von Westphalen Rechtsanwälte Steuerberater Partnerschaft mbB
Dr. Ronald Steiling (Hamburg)
Dr. Dietrich Drömann (Hamburg)
Corinna Lindau, LL.M. (Hamburg)
Sandra Fröhlich (Hamburg)
