! Important for all sufferers and suitors!
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7 U 140/18
2 O 336/12 LG Itzehoe
Schleswig-Holstein Higher Regional Court
Delivered on 13.06.2019
as a clerk at the office
in the name of the people
In the litigation
the 7th Civil Senate of the Schleswig-Holstein Higher Regional Court has recognized as being due to the oral hearing of 26.03.2019:
- On the appeal of the plaintiff dated 26.09.2018, the judgment of the single judge of the 2nd Civil Division of the district court Itzehoe (2 O 336/12) announced on 24.09.2018 is annulled with the underlying procedure. The case is remanded to the Itzehoe district court for a new trial and decision.
- Judicial fees and expenses incurred by the judgment which has been annulled and which have arisen from the appeal are not levied. For the rest, the decision on costs is reserved for the final decision of the Regional Court.
- The judgment is provisionally enforceable.
- The revision is not permitted.
In this and six further proceedings, the plaintiffs claim that any wind turbines (altogether seven wind turbines at a distance of 873 to 1,800 m from the plaintiff’s home) have a total of seven wind turbines, alternatively by taking suitable measures to ensure that their residential property and their health are protected by the wind turbine operation not be affected. Since December 2000, the plaintiffs have been owners of a single-family home in R. (about five kilometers north of B). The plaintiffs live in their house together with their son. The property is under construction law in the outdoor area (§ 35 BauGB) and at the same time in a village / mixed area in the sense of the TA noise (= Technical instructions for protection against noise, Sixth General administrative provision to the Federal Immission Control Act, GMBl 1998, 503-509). At the time of purchase and when the claimants moved in in 2000, “Windpark B.” already existed, consisting of 10 Vestas V80 turbines with a capacity of approx. 1 MW each south of the residential building. This wind farm is still in operation today. Another wind park (V.), consisting of 3 large Vestas plants, each with 3 MW output, was built in 2015 north of the plaintiff’s property.
It is undisputed that the disputed wind turbines will be retrofitted with demand-based night marking (BNK) by December 2020 because this is now required by law. Because of the risk of ice throw, the systems are provided with a corresponding shutdown device.
The company R1 D. / B. GbR, represented by Hans-Reimer T1, applied in 2009 to the LLUR (= State Office for Agriculture, Environment and Rural Areas of the State of Schleswig-Holstein in Flintbek) for the construction and operation of seven wind turbines in D. This was a R1 project (previously 14 smaller windmills were operated in B.).
After obtaining a sound prognosis by the expert Dipl.-Ing. Heinz-Peter B1 (Ingenieurbüro für Akustik B1 GmbH in M.) of 06.01.2010, the LLUR approved by decision dated 12.11.2010 with the construction and operation of 7 wind turbines (hereinafter: WEA) of the type R. 3.XM 104 with a power of 3.4 MW each, a grain height of 80 m, a rotor diameter of 104 m and a total height of 132 m in the municipality of D. These were the following notices:
|WEA||Decision-sign||method||Distance of the WEA to the house||File number OLG (court case LG IZ)|
|WEA 1||G10 / 2010/026||6 A 160/12||about 1,800 m||7 U 140/18 (LG Itzehoe 2 O 336/12)|
|WEA 2||G10 / 2010/027||6 A 150/12||about 1,490 m||7 U 18/19 (4 U 109/18 = LG Itzehoe 2 O 209/12)|
|WEA 3||G10 / 2010/028||6 A 156/12||about 1,096 m||7 U 145/18 (LG Itzehoe 2 O 375/14)|
|WEA 4||G10 / 2010/029||6 A 158/12||about 1,568 m||7 U 141/18 (LG Itzehoe 2 O 197/12)|
|WEA 5||G10 / 2010/030||6 A 157/12||about 873 m||LG Itzehoe 2 O 73/13|
|WEA 6||G10 / 2010/031||6 A 151/12||about 1,206 m||LG Itzehoe 2 O 193/14|
|WEA 7||G10 / 2010/032||6 A 159/12||about 1,598 m||7 U 19/19 (4 U 112/18 = LG Itzehoe 2 O 194/14)|
Indication of the start of construction and the start of operations of the respective wind turbines took place at the following times:
|WEA||start of building||start of operation|
|WEA 5||14th KW 2011||22.07.2011|
The subject of this proceeding is WEA 1 (distance to the plaintiff’s residence about 1,800 m). The defendant has taken over the approval in favor of the R1 D. / B. GbR and is the current operator of the WEA.
The approval of the wind turbine is final. The plaintiff’s opposition was rejected by decision of 02.11.2012 (Annex B 1). The action against it was dismissed with judgment of the administrative court Schleswig of 20.12.2013 (Annex B 2). Reference is made to the content of the judgment of the Verwaltungsgericht Schleswig (Case 6 A 160/12). The application for authorization, which was filed against it, was rejected by order of the Schleswig-Holstein Higher Administrative Court of 27.03.2014 (ref. 1 LA 9/14). The claimants had failed to meet the deadline for submitting the application for authorization and had therefore requested re-establishment of rights. The OVG rejected the request for re-establishment of rights by the above-mentioned decision and therefore declared the application for the appeal inadmissible.
The wind farm D. consists in the meantime of eight wind turbines of the manufacturer R. (successor S., type 3.XM 104). However, the pending lawsuits only deal with the seven wind turbines mentioned above. The eighth wind turbine was built later and has a distance of about 1.3 km to the plaintiff’s residence (see expert opinion Dipl. Ing. H1 dated 30.03.2017, page 8). Immediately to the north, since 2015, there have been three further wind turbines manufactured by Vestas, which were neither the subject of the aforementioned administrative court proceedings nor the expert investigations in this case. All R. 3.XM 104 plants operated in wind farm D. are so-called “pitch-controlled” plants. In contrast to so-called “stall plants”, where there is a stall in the form of a shower (“stable effect”) at high wind speeds, pitch-controlled systems work with a dynamic adjustment of the blade pitch. After reaching the rated power, the rotor blades are twisted so that they offer the wind a smaller attack surface. Although this limits the power taken from the wind, on the other hand, the sound power level of these systems usually does not increase after the rated power has been reached (see Expert Report B1 dated 06.01.2010).
The plaintiff’s house is located southwest of Wind Farm D. on the road R. The plot boundary of the plaintiff lies about 50 m to the northeast of the road.
The plaintiff (born 16.04.1969) operates a horseshoeing business. Since commissioning the WEA`s he suffers from falling asleep and staying asleep, irritability, frequent exhaustion, dizziness, nausea and diarrhea of unexplained genesis (see certificate of general practitioner Dr. H. K1 dated 07.05.2012). The applicant, who has been suffering from bronchial asthma and arterial hypertension for some time, has the following symptoms: sleep disturbances, drowsiness, ear pressure and irritability (see certificate Dr. H. K1 dated 07.05.2012).
In the appointment before the district court on 04.04.2016, in which in addition to the representatives of the law partly also the managing directors of the seven operating companies took part, the parties together with the sound technical expert Dipl.-Ing. Jürgen H1 agreed on a representative measurement of all seven wind turbines concerned. Thereafter, three to five measurements should be taken each day and night with appropriate wind strength and different wind directions.
The plaintiffs have alleged that their health impairments were due to a wind turbine syndrome based on the seven wind turbines in question. In addition, her property had suffered a significant loss of value of 100% through the operation of the wind farm. The wind turbines are harmful to the environment, which affected the plaintiffs beyond the local and reasonable extent in their health and their property. The following emissions are reported:
- Substantial noise disturbances due to the operation of the wind turbine with the corresponding wind direction and wind force of more than 60 dB (A).
- Infrasound impairments due to the operation of the wind turbines.
- Unacceptable light immissions through the day and night detection (lighting for the safety of air traffic)
- Shadow by turning the wings with appropriate sunlight
- Disco effect in certain sun and light conditions (so-called periodic shadow cast)
- Ice throw in the fall, winter and spring in appropriate weather conditions
- Electromagnetic radiation due to the operation of the system
- Optical impairments due to the rotational movements and a visually depressing effect due to the large number of systems.
The claimant alleged that he had already had to cancel several orders because of diarrhea. Sleeping with the window open is no longer possible, even when the window is closed a bass be heard. Because of the night code, the windows would have to be darkened extra. Gardening and a stay on the terrace are no longer possible because of the constant perception of the rotational movements.
The claimants have requested
- Order the defendant to refrain from operating a R. 3.XM 104 wind turbine in accordance with the attached land register for the production of wind energy.
- in the alternative, order the defendants to take appropriate measures to ensure that neither the property of the claimants nor their health is impaired by the operation of the R. 3.XM 104 brand wind turbine,
- to threaten the defendant to impose a fine of up to € 250,000 or a fine of not more than six months in each case of infringement.
The defendant has requested that
the action be dismissed.
It denies an unacceptable impairment by the wind turbine operated by it. The plant was too far away from the residence of the plaintiffs. All guidelines of the Federal Immission Control Act (BImSchG) would be complied with. This was already clearly established during the approval procedure and in particular during the subsequent administrative court proceedings. The limits of TA noise (daytime 60 dB (A) and at night 45 dB (A)) would be met. The plaintiffs’ property enjoys no special protection in the outdoor area. The claim for injunctive relief asserted by the claim of 06.12.2012 is otherwise forfeited and barred.The defense rights of the neighbors are already forfeited, if he does not act promptly against a building permit. As soon as construction work on the neighboring property is noticeable, action would have had to be taken.
The district court has provided evidence by obtaining a sound technical opinion of the expert Dipl.-Ing. Jürgen H1 (report of 30.03.2017 and oral explanation of 13.08.2018) as well as by obtaining a photometric report of the expert Dr. med. Joachim H2 (TÜV Nord Environmental Protection GmbH & Co. KG, Hamburg) Because of the result of taking evidence reference is made to the content of the aforementioned expert opinions and to the minutes of the hearing of 13.08.2018.
By the judgment of 24.09.2018, the district court dismissed the claim. The asserted claims are neither time-barred nor forfeited. The conditions for the claim for injunctive relief in accordance with §§ 1004, 906 para. 1 sentence 2 BGB are not fulfilled. If the limits or guideline values mentioned in § 906 (1) sentences 2 and 3 BGB are complied with or even undershot, this indicates the insignificance of the impairment. That is the case here. According to the measurements of the acoustic expert H1 the standard values of TA Lärm (60 dB during the day and 45 dB at night) are met. The expert H1 found sound pressure levels of 41.2 dB (A) during the day and 37 dB (A) for the entire wind farm D. at night, which would be well below the limit values. Another report according to § 412 ZPO can not be obtained. Compliance with the guideline values from TA Lärm indicated the insignificance of the noise impairments. The applicants’ submission did not undermine those findings. A significant infrasound in the house of the plaintiff was not stated. The plant would be too far away. There was also no significant impairment detected by light immissions. The expert Dr. H2 stated in its report of October 16, 2017 that the light immissions were well below the limits of the light guideline. The visual impairments caused by the disputed wind turbine are not essential because of the distance. The same applies to the alleged shading and disco effect. The plot of the plaintiff was located in the outer area, the immediate environment had already been characterized for many years by a large number of wind turbines. Here is the distance of the property to the WEA greater than three times the height of the plant (3 x 132 m = 396 m), therefore, according to the case law no visually obtrusive effect before (OVG Koblenz, NVwZ-RR 2011, 438).For further details, reference is made to the content of the contested decision.
On the other hand, the appellants’ appeal is directed. You mean that the noise limits of the TA Lärm no longer correspond to the state of the art. According to a WHO recommendation and the guidelines for environmental noise in the EU of 10.10.2018, the limit value tags should be 45 dB (A) at daytime and 40 dB (A) at night. The noise propagation prognosis would also have to be based on the new LAI guidance on sound immission protection in wind turbines in accordance with the decree of MELUND (Ministry for Energy Transition, Agriculture, Environment, Nature and Digitization) of 31.01.2018. These instructions include an adaptation of the hitherto customary forecasting methods to the special features of high wind power plants. According to this, the octave sound power level and possibly other values such as speed and power should be stipulated in the approval. Incidentally, not only punctual short-term measurements, but multi-week long-term measurements are required. The sound technical expert H1 was biased and intertwined with the interests of wind energy in many ways. He had accepted and carried out orders from wind turbine operators to a considerable extent. Only since the commissioning of the seven wind turbines (July 2011) had the health problems set out by the plaintiffs occurred. The disco effect was sufficiently stated, the color of the windmill wing was ineffective. The constant day / night identification is disproportionate and a technical retrofit is possible. In the overall view, the plaintiff’s house looks like “locked up”. The sound technical expert H1 was biased and intertwined with the interests of wind energy in many ways. He had accepted and carried out orders from wind turbine operators to a considerable extent. Only since the commissioning of the seven wind turbines (July 2011) had the health problems set out by the plaintiffs occurred. The disco effect was sufficiently stated, the color of the windmill wing was ineffective. The constant day / night identification is disproportionate and a technical retrofit is possible. In the overall view, the plaintiff’s house looks like “locked up”. The sound technical expert H1 was biased and intertwined with the interests of wind energy in many ways. He had accepted and carried out orders from wind turbine operators to a considerable extent. Only since the commissioning of the seven wind turbines (July 2011) had the health problems set out by the plaintiffs occurred. The disco effect was sufficiently stated, the color of the windmill wing was ineffective. The constant day / night identification is disproportionate and a technical retrofit is possible. In the overall view, the plaintiff’s house looks like “locked up”. He had accepted and carried out orders from wind turbine operators to a considerable extent. Only since the commissioning of the seven wind turbines (July 2011) had the health problems set out by the plaintiffs occurred. The disco effect was sufficiently stated, the color of the windmill wing was ineffective. The constant day / night identification is disproportionate and a technical retrofit is possible. In the overall view, the plaintiff’s house looks like “locked up”. He had accepted and carried out orders from wind turbine operators to a considerable extent. Only since the commissioning of the seven wind turbines (July 2011) had the health problems set out by the plaintiffs occurred. The disco effect was sufficiently stated, the color of the windmill wing was ineffective. The constant day / night identification is disproportionate and a technical retrofit is possible. In the overall view, the plaintiff’s house looks like “locked up”.
The applicants request that
to change the contested judgment and
- Order the defendant to refrain from operating a R. 3.XM 104 wind turbine in accordance with the attached land register for the production of wind energy.
- in the alternative, order the defendant to take appropriate measures to ensure that neither the property of the claimants nor their health is affected by the operation of the R. 3.XM 104 brand wind turbine,
- to threaten the defendant to declare a fine of € 250,000 or administrative custody up to six months in case of infringement;
- in the alternative, in the event that the Senate should find that there are serious procedural defects at first instance, remit the case to the Itzehoe Regional Court, setting aside the judgment under appeal and the procedure.
The defendant requested that
dismiss the appeal of the applicants,
in the alternative, in the event that the Senate should find that there are serious procedural defects at first instance, remit the case to the Itzehoe Regional Court, setting aside the judgment under appeal and the procedure.
It considers that the claims are too vague. An interdiction of the operation of the disputed plant could not be required.For the noise pollution, the limit values of TA Lärm are decisive. The LAI Recommendations of 9/2017 presented a non-standard-issue decree. These recommendations would also only apply to the emissions-related forecast under the approval procedure.Here, however, it depends on the concrete result of a measurement. Incidentally, according to the LAI recommendations of September 2017, a large number of the courts would have declared TA-Lärm in conjunction with DIN ISO 9613-2 to remain applicable (most recently OVG Lüneburg, order of 11.03.2019, ZNER 2019, 148, 154).Furthermore, the legal situation at the time of the approval planning 2010/2011 is decisive for the measuring procedure. At distances below 500 m, interference by infrasound is excluded. There is no scientific evidence about the effects of infrasound on human health. Man is not a blue whale. The expert H1 was not biased. Disco and Schattenwurf effect are not present.The in the two still pending at the district court Itzehoe proceedings (LG Itzehoe 2 O 73/13 and 2 O 193/14) obtained shadow cast reports of TÜV Nord Environmental Protection Rostock GmbH & Co KG have shown that the disputed wind turbines at the house R. caused no shadow , The further claimed impairments (ice throw, optics) are not substantiated set out. The permanent day / night identifier is subject to a condition in the approval procedure and can not be unilaterally changed by the operator. The retrofitting with on-demand postmarking (BNK) is already planned.Incidentally, light immissions as well as the visually impairing effect could be compensated by simple architectural self-help measures.
For the further details of the appeal on appeal, reference is made to the content of the exchanged pleadings. The Senate personally heard the parties in the appointment on 26.03.2019 and additionally proved the alleged noise impairments by hearing the expert Dipl.-Ing. H1. For the result of the taking of evidence reference is made to the content of the minutes of 26.03.2019.
By comparison, the sale of the plaintiff property to the defendants or their managing directors had been discussed, However, an agreement could not be reached. The Senate expressly informed the parties by order of 02.05.2019 that due to an insufficient collection of evidence at first instance, the judgment under appeal and remittal to the district court pursuant to section 538 (2) no. 1 ZPO would be considered null and void.
In any event, the plaintiff’s admissible appeal in the case is provisionally successful. The contested judgment and the underlying proceedings pursuant to Section 538 (2) (1) ZPO are to be set aside and remitted to the Itzehoe Regional Court. The procedure at first instance suffers from substantial procedural defects, which make extensive and complex evidence necessary (§ 538 para. 2 sentence 1 no. 1 ZPO).
The District Court has violated the plaintiff’s right to be heard (Article 103 (1) of the Basic Law) by omitting substantial evidence presented by the plaintiff. The unauthorized omission of a request for evidence constitutes a breach of the obligation to exhaust the evidence as an outflow of the obligation to grant a hearing. Art. 103 para. 1 GG (Federal Constitutional Court E 50.32, NJW 2003, 125, 127). Since the requirement to exhaust the evidence offered is at the heart of the civil process, there is a substantial procedural violation within the meaning of Section 538 (2) (1) ZPO(BGH, Judgment of 20 July 2011 – IV ZR 291/10 -, Juris No. 21 = VersR 2011, 1392, 1394, Munich Higher Regional Court, judgment of 20.02.2015, 10 U 1722/14 Juris, marginal 33 mwN) , In addition, a considerably erroneous evidence evaluation represents a procedural violation, which in accordance with. § 538 para. 2 sentence 1 no. 1 ZPO entitled(BGH, judgment of 19 February 1957 – VIII ZR 206/56 -, juris = NJW 1957, 714; OLG Munich, judgment of 20.02.2015, Juris, paragraph 35, OLG Hamm, judgment of 30.07.2013, NJW 2014 , 78-84, Juris, no. 96). Those conditions are met here.
1. Failed to gather evidence
Insofar as the district court failed to investigate the alleged immissions by means of infrasound, disco effect, shadow and ice with the corresponding evidence, there is a substantial procedural error and, at the same time, a violation of Art. 103 (1) Basic Law. The district court has so far made excessive substantiation requirements to the plaintiffs. Insufficient gathering of evidence, in particular in connection with the non-granting of a legal hearing, constitutes the most important case of application of a material procedural defect within the meaning of § 538 (2) No. 1 ZPO(Zöller-Hessler, ZPO, 32nd ed., § 538, marginal 25 and 28). In this case, the Regional Court rejected the plaintiffs’ allegations of significant health effects caused by infrasound, disco effect and shadow and ice cast without taking evidence as unsubstantiated or because of the excessively large distance (between 1096 and 1800 m) as irrelevant. However, the plaintiffs have already sufficiently submitted on these immissions in the complaint of 11.06.2012 and supplemented by written statement of 12.04.2013 and also by submitting self-produced video material. When assessing whether there are significant impairments in the sense of § 906 Abs. 1 BGB (German Civil Code), it is ultimately a question of a judicial appraisal of all circumstances and an overall assessment of all the circumstances characterizing the respective immissions. It would therefore first task of the District Court have been the entire ambient air pollution – even if they considered individually in each case under the appropriate limit or guide values in accordance with § 906 para 1 sentence 2 and 3 BGB BE REDUCED -. Tatrichterlich determine and then, if necessary, with expert help to judge. That did not happen here. The district court has only obtained appraisals of the alleged light and sound pressure immissions.
Second Incorrect assessment of evidence
a) burden of proof
The district court misunderstood the burden of proof for the claim for injunctive relief. The Senate has already referred to this with a resolution dated 02.05.2019. Although this error is a mere error of law, the correct burden of proof must be taken into account in the continuation of the procedure.
A civil injunction claim exists acc. 1 (1) sentence 1, 906 (1) BGB only if there are “substantial impairments” within the meaning of § 906 (1) BGB which exceed the obligation to tolerate within the meaning of § 906 (1) and (2) BGB go out.According to § 906 Abs. 1 BGB (German Civil Code), a duty of acquiescence of the owner exists only for insignificant impairments or according to § 906 Abs. 2 BGB for substantial but customary impairments that can not be prevented by commercially reasonable measures.The impairments are usually gem. § 906 Abs. 1 S. 2 BGB insignificant, if the limit or guideline values specified in laws or legal regulations are not exceeded by the effects determined and evaluated according to these regulations.In principle, the disturber must explain and prove that an impairment is only insignificant (BGH, judgment of 20.11.1992 – V ZR 82/91 – BGHZ 120, 239, 257; BGH, judgment of 08.10.2004, BauR 2005, 104-106; Wilhelmi in Ehrmann, BGB, 15th edition 2017, § 906, marginal 19 a). Insofar as limit or benchmark values are stipulated by public law, the disturber first has to explain and prove that his immissions remain within the limits or guideline values mentioned in § 906 (1) sentences 2 and 3 BGB. Only if these guideline values are demonstrably adhered to or fallen below, this circumstance indicates the insignificance of the impairment within the meaning of § 906 Abs. 1 BGB (Federal Supreme Court, Judgment of 13.02.2004, NJW 2004, 1317, 1318; BGH judgment of 08.10.2004, op. Cit BauR 2005, 104-106).Only if the disturber has proved in the first step that the limit or guideline values according to § 906 Abs. 1 S. 2 and 3 BGB are met, he gets the appropriate proof relief to good. In a second step, it is then up to the impaired person to explain and prove the circumstances that shake this indexing effect(BGH, judgment of 21.10.2005 – V ZR 169/04 -, juris Rn.16 = NJW-RR 2006, 235-237). Possibly. is also about it in the civil process to raise evidence. In the context of a final overall assessment of all circumstances characterizing the respective immissions, the trial judge must assess whether the impairments are “substantial” or “insignificant” in the sense of § 906 Abs. 1 BGB. He is not bound by public-law limits or guideline values, but these can – even if they do not fall under § 906 Abs. 1 S. 2 or 3 BGB – represent a certain decision support (Wilhelmi in Ehrmann, BGB, loc. Cit. § 906, marginal 20). In the final assessment, the civil judge may not disclaim recent technical and medical knowledge (eg WHO recommendations) at the time of the conclusion of the oral proceedings.Noise is generally more annoying than transient noise, high frequencies are generally more annoying than low (BGH, judgment of 29.06.1966 – V ZR 91/65 -, BGHZ 46, 35-43 “Factory noise particleboard production” ), at night or on Sundays and public holidays disturbs noise more than during the day on weekdays (BGH, judgment of 17.12.1982 – V ZR 55/82 – NJW 1983, 751-752 “tennis court”).
The above burden of proof has misjudged the district court. By order of 03.07.2014, the Regional Court has imposed on the plaintiffs the full burden of proof for the alleged exceedance of the limits for sound and light immissions and obtained the appropriate expert opinions at their own expense.Here it is disputed, however, whether the limits of TA noise (in village and mixed areas tags 60 dB (A) and at night 45 dB (A)) and the so-called light guideline (= LAI Hints for measuring, assessing and reducing Light immissions in accordance with decision of the Federal Republic / Länder Arbeitsgemeinschaft für Immissionsschutz of 13.09.2012, see www.LAI-Immissionsschutz.de ). This proof is initially the responsibility of the defendant.
b) Noise immissions (expert opinion H1 dated 30.03.2017 and 13.08.2018)
The report of the expert Dipl. Ing. Jürgen H1 is insufficient. The findings and conclusions of the expert are not tenable for both factual and legal considerations.
However, the complaint of concern that the expert is biased can no longer be raised at second instance, The refusal procedure is an independent interim procedure, in which the application for refusal and the reason are finalized, ie binding. This happened with the decision of the OLG Schleswig of 29.03.2018 – 16 W 32/18. The senate is bound to this according to § 531 Abs. 1 ZPO.Nevertheless, the expert H1 – on demand – in the appointment of 26.03.2019 has admitted that actually 80% – 90% of his expert opinions and the orders of his company x GmbH in the context of urban land use planning of cities, municipalities and plant operators are granted. There is undoubtedly a certain economic dependence on orders from the wind power industry (x GmbH, with an estimated annual turnover of € 1 million, receives 95% of the surveys in the context of land-use planning).It is true that the expert (who, in addition to working for the GmbH, also works on his own account for 10-20% of his workforce) or at his company, is an “official measuring point” according to § 29b BImSchG, nevertheless with regard to the size and volume of contracts awarded to the wind industry casts doubt on the economic independence of the expert. It is therefore advisable to obtain a new report in accordance with § 412 ZPO under consideration of the above-mentioned burden of proof distribution. For this purpose, other, more independent appraisers (such as the company D1 GmbH in O1, Managing Director Dipl.-Ing Dominic H3) are likely to be available.
The expert H1 comes after three measurements carried out (11 April 2016, 23./24.02.2017, 26./27.02.2017) to the conclusion that the plaintiff property tags a noise pollution of 41.2 dB (A) and at night an average of 37 dB (A) is available (see page 25 of the report of 30.03.2017). The tolerance is assessed by the expert H1 at +/- 1 dB (A). His report therefore – as far as logical – to the statement that the limits of the TA-noise (day 60 dB (A) and at night 45 dB (A) outside of buildings) are not reached here. These findings are insufficient.
First, the expert himself in the appointment on 26/03/2019 – on appropriate notice – even admitted that on page 24 of his opinion with regard to the measurement of 23./24.02.2017 is a calculation error. There, instead of 36.7 dB (A), it must actually be 35.7 dB (A) (see page 4 of the minutes of 26.03.2019).
In addition, the expert confirmed in the appointment of 26.03.2019 that according to the new requirements of MELUND (Ministry of Energy Transition, Agriculture, Environment, Nature and Digitization) from 31.01.2018 calculated in his opinion distance correction (because of the measurements of the so-called. Replacement measuring point from 23./24.02 and 26./27.02.2017) would have to be recalculated again. With the aforementioned decree, the Ministry of the Environment in Kiel has also ordered for Schleswig-Holstein that the new LAI guidelines on noise emission protection in wind turbines (as at 30.06.2016) be based on the measurements and forecasts to be made in the administrative approval procedure. The new LAI notes correspond to the state of the art. [Note d. Editor’s note: Even the OLG Schleswig is wrong here because infrasound (0-20 Hz) and low-frequency sound up to 63 Hz are not taken into account by the LAI. Also, the LAI continues to use false filters (A rating rather than unweighted, it continues to take into account the hearing of the human ear and not the actual sound effect on the human body), see https://www.windwahn.com/2018/02/ 04 / stricter-noise-control for wind power gusz-has-to-error-hin /] According to the new findings of the Federal / State Association for Immission Control (LAI), it had previously been assumed that too much damping of the sound through the ground. Therefore, the traditional forecast formula for wind turbine noise did not adequately reflect reality. Now, for example, the octave sound power levels and possibly further values such as speed and power are to be stipulated in the approval.
According to Section 2.4 TA-Lärm are also the preliminary, additional and based on the expert H1 distance correction is still based on the old forecast calculation method of the appraisal received in the planning stage Ing-Büro B1 and Dörries from 06.01.2010. According to the new MELUND decree of 31/01/2018, in particular the floor damping in the calculation of the sound propagation would have to be omitted, which is likely to result in higher noise levels. To assess overall burden.Here, there is no assessment of the pre-pollution (= emissions from installations that fall within the scope of TA-noise), because the house of the plaintiffs undisputedly in the immediate vicinity of the already existing at the collection of plaintiffs “Wind Farm B.” (10 Vestas plants south of the plaintiff’s house) and in 2015 three large Vestas plants (wind farm “V.”) were erected north of the house. The expert H1 confirmed in the appointment on 26.03.2019 that the corresponding preload would still have to be determined here (see page 5 of the minutes of 26.03.2019).
In addition, the expert H1 has the assessment times according to point 6.4. the TA noise was not met. During the day a judgment time of 16 hours and during the night of the highest evaluation level measured in a full hour is decisive. However, according to his report, the expert H1 only used a measurement of 66 minutes for the daily value (measurement of 11.04.2016) and only averages for the night value. Incidentally, the expert only carried out punctual short-term measurements totaling just under 17 hours (11.04.2016 from 20:20 to 24:00 = 3 ½ hours, 23./24.02.2017 from 22:30 to 06: 25 o’clock = 9 hours, 26./27.02.2017 from 22:02 o’clock to 02:00 o’clock in the morning = 4 hours). These measurement times are already insufficient because not even the legal requirements of the TA-noise have been observed. Incidentally, the expert himself stated at his supplementary hearing on 26.03.2019 that – despite a certain risk of manipulation – he would consider long-term measurements to be meaningful here. A measurement over a period of up to 6 weeks is today technically possible without any problems, he himself had already carried out such measurements on behalf of operators and approval authorities. Even the measurement and time scope agreed in the appointment on 04.04.2016 (3 to 5 measurements at different wind directions in each case and during the day and at night) was not observed by the expert. Longer measuring times lead, as the expert H1 has acknowledged, to a higher measuring accuracy. Despite a hand-held certain danger of manipulation in long-term measurements, the Senate therefore considers that measurements over a period of at least 4 weeks are necessary. Such measurements have already taken place in practice and technically possible without any problems.
The findings of the expert H1 on exposure to infrasound (low-frequency noise) are insufficient. In the report (p. 22) it says only succinctly:
“… No acoustic abnormalities of the wind turbine were detected at the replacement measuring point. No evidence of harmful low-frequency noise was found . “
The expert himself acknowledged at his supplementary hearing in the meeting on 26/03/2019 that he had not carried out low-frequency measurements inside the building. He also acknowledged that he did not have the appropriate measuring instrument for the measurements of low-frequency sound because such measurements would have to be carried out in the ground, among other things. He was not a specialist for that. The Senate has already pointed out in a resolution dated 02.05.2019 that the fact that TA-Lärm does not rate the low-frequency sound (infrasound: <16 Hz) (because it is inaudible) is initially irrelevant for the civil law assessment. It is undisputed that infrasound can be measured and, if necessary, subsequent medical clarification is required to determine whether harmful health effects can be caused to those affected or The disputed plants are indisputably each 132 m high and it can not be ruled out that sound waves and vibrations are transmitted not only over the air but also over the ground.While the volume is described with the amplitude (= sound pressure level, measured in the logarithmic unit decibels dB (A)) the frequency (= number of oscillations per second, measured in Hz) describes the pitch. For the TA-noise, only the sound pressure level (dB (A)) is decisive. This is based on the fact that the human hearing range covers only a frequency range of 20-20,000 Hz. Sound waves outside the human hearing range in the range of lower frequencies (<16 Hz) are called infrasound. In science, it has not yet been conclusively clarified whether infrasound also causes damage to health such as insomnia, headaches and impaired concentration. At present, there is still a lack of appropriate long-term studies on the chronic effects of a long-standing, low-threshold infrasonic load. In 2018, the Copenhagen Cancer Research Center completed a health examination of wind farm operators that has been ongoing since 2013 (cf.http://www.energiwatch.dk ). It has already been demonstrated experimentally that certain brain vibrations are stimulated and modeled by low-frequency sound (see Prof. Dr. Quambusch and Martin Laufer, Infrasound of wind turbines as a health hazard, ZFSH / SGB = Zeitschrift für die sozialrechtliche Praxis, 8/2008, 451 -455).However, the difficulty of medical proof is not lacking in the necessity of first determining the burdens of the site by infrasound.
The expert has wrongly in his opinion gem. No. 6.9. TA-Noise applied a measurement discount of 3 dB (A) (see page 26 of the written opinion). This is inadmissible in the civil law assessment. In the context of private immission protection, the disturber carries the burden of proof and proof for the insignificance of the impairment and thus for the observance of the limit and guideline values, which triggers the Indizwirkung according to § 906 Abs. 1 S. 2 and 3 BGB. Uncertainties in the determination of facts are at the expense of the disturber. Therefore, only the actually measured values are decisive under civil law without a corresponding measurement discount, because otherwise measurement inaccuracies or other uncertainties were at the expense of the impaired(BGH, judgment of 08.10.2004, V ZR 85/04, BauR 2005, 104-106, Juris no. 11). Purpose of the gem. No. 6.9. The TA-noise allowable measurement discount is the protection of the operator in case of intervention by the authority, ie this regulation should ensure that the authority may only intervene against the operator of a disturbing system, even if it is ensured that the noise immissions, taking into account all contingencies exceed the benchmark (BVerwG, judgment of 16.05.2001 – 7 C 16/00 -, NVwZ 2001, 167-1169, BGH, judgment of 08.10.2004, supra).However, this is not an intervention by the authorities, but a directly enforceable direct civil claim for injunctive relief.
3. Overall assessment
It lacks a final overall assessment of the district court with regard to the established measure and the duration of the impairments within the meaning of § 906 Abs. 1 BGB. In this case, the trial judge is not bound by public-law limit or guideline values (see Wilhelmi in Ehrmann, BGB, 15th ed. 2017, 906, marginal 20 mwN). In this context, the Senate points out that the limits of TA-Lärm of 26.08.1998 (GMBL 1998, pp. 503-509) are already over 20 years old and that possibly newer findings must be taken into account.For example, in October 2009, the World Health Organization (WHO) issued a recommendation on noise pollution from wind turbines, which does not provide a recommendation for nocturnal noise pollution, but provides a limit of up to 45 dB (A) for daytime noise (www.euro.who .int / _data / assets / pdf_file). Legal limits or benchmarks are indicative only.In the course of an overall consideration and the judging of all circumstances, the civil judge must, as a result, comprehensively assess each individual immission as well as all immissions and finally evaluate it with a view to the question of a “significant impairment”. This includes the inclusion of the light emissions emanating from the wind turbineseven if, according to the findings of the expert Dr. med. Joachim H2 falls below the glare standard values according to the so-called light guideline (LAI recommendation of 13.09.2012). In addition, the overall assessment must also take into account immissions – as far as they actually exist – through disco effect, shadow and ice throw and possibly also due to electromagnetic radiation. In addition to the corresponding technical appraisals for the individual immissions, it would also be necessary – after determining the total immissions – to obtain a medical report on the question of whether the total immissions detected can cause health problems in humans (see below), For the alleged shading effect, the district court only in the two first-instance not yet decided procedures Landgericht Itzehoe, Az. 2 O 73/13 and 2 O 193/14 an expert opinion obtained (TÜV Nord Rostock, Dr. R2). This has been missed in this process. With regard to the alleged disco effect, the plaintiffs once again specified the alleged impairment as follows:In particular, in the sunshine and orientation to the south-west (ie with corresponding sunshine daily) otherwise in the spring (from April to early July from 07:10 o’clock to 08:30 o’clock = 60-70 days x 1-2 hours per day) and in autumn (from September – beginning of December: 13:30 to sunset = 90 days á 3 hours daily). In that regard, if necessary, proof of the alleged charges would still have to be provided.
Insignificant impairments within the meaning of § 906 (1) are those which are reasonable to the sensibility of a reasonable average person, taking into account all public and private interests (BGH, judgment of 27.10.2006 – V ZR 2/06 -, NJW RR 2007, 168- 170). In doing so, a judgmental evaluation is to be made. The starting point is the feeling of a reasonable average person with regard to the nature and purpose of the impaired property. Hypersensitivity is a fate that everyone has to bear, which is why the criterion of the “intelligibility of an average person” enables elastic handling and judgment (see Wilhelmi in Ehrmann, loc. Cit., § 906, marginal note 18).In the course of the overall assessment, of course, it should also be taken into account that the plaintiff’s house is located outside the planning area (§ 35 BauGB) and that it is a wind priority area. This is especially true with regard to the optical impairments, especially since the immediate environment is also characterized by the large number of other facilities.
4. Consideration according to § 538 ZPO
Due to the aforementioned procedural deficiencies, a comprehensive and complex evidence is necessary. In particular, reliable findings regarding the alleged emissions under consideration of the statutory burden of proof must be made with expert assistance and then a final overall assessment in accordance with § 906 BGB must be made. The question of a remittal was discussed at the hearing on 26.03.2019. In the alternative, both party representatives have requested the remittal in case the Senate should find material procedural errors. Finally, the Senate expressly pointed out by resolution dated 02.05.2019 that a remittal of the procedure to the district court under § 538 (2) ZPO is possible.
The remittal can not be waived in this case. The decision between the remittal pursuant to § 538 (2) ZPO and a separate case decision pursuant to § 538 (1) ZPO is at the due discretion of the Court of Appeal. In the context of this discretionary decision, it is also important to consider that aRemitting the case usually leads to an increase in the cost and delay of the litigation and this may conflict with the interests of the parties (see BGH, judgment of 10.03.2005 – VII ZR 220/03 -, NJW-RR 2005, 928-929). It must also always be kept in mind that the plaintiff’s interest in obtaining an enforceable title for the asserted claims within a reasonable time.
After careful consideration of all the circumstances, the Senate has come to the conclusion that the interest of the parties in carrying out a procedural error-free first-instance procedure outweighs the above-mentioned aspects of process economics. A decision of its own does not seem pertinent to the Senate, as it is likely that it will take until the decision is reached to repeat and complete a thoroughly elaborate piece of evidence. The first-instance procedural errors referred to are to be regarded as serious, since they affected the applicants’ claim under Article 103 (1) of the Basic Law to grant them a right to be heard. The plaintiffs have a vested interest in ensuring that the proceedings are not burdened with such deficiencies.By submitting their auxiliary request, they have themselves stated that they do not consider their request to obtain an enforceable title in due time over the claims asserted to be annulled by a repeal and remittal. Due to the extensive need for further education, the aspect of process economics is not particularly significant, since a considerable further process time is expected anyway.
The decision on costs must be reserved to the first court, as the final success of the appeal can only be assessed after the final decision (Munich Higher Regional Court, judgment of 20.02.2015, 10 U 1722/14, Juris, marginal 41 mn). Judicial costs, which were caused by the repealed judgment of the district court Itzehoe from 24.09.2018, as well as the court costs for the appeal procedure were gem. § 21 para. 1 p. 1 knock down GKG, because a substantial procedural violation, which alone gem. § 538 para. 2 sentence 1 no. 1 ZPO can lead to the annulment and remittal, which necessarily constitutes an incorrect treatment in the sense of § 21 GKG (cf OLG Munich, judgment of 20.02.2015, loc. Cit., Juris, marginal 42 mwN ).
The decision on the provisional enforceability follows from § 708 No. 10 ZPO. Even in the case of a repeal and remittal is in view of §§ 775 No. 1, 776 ZPO a statement of provisional enforceability is required (Federal Court of Justice, judgment of 24. 11. 1976 – IV ZR 3/75 -, MDR 1977, 480, OLG Munich, judgment of 10.02.2015, loc. Cit., Juris, marg. 43).
The remittal is made to the same chamber of the district court, since the law does not provide for the remittal to another chamber of the district court (see OLG Frankfurt, judgment of 20.07.2010, Juris, No. 37 = NJW RR 2010, 1689-1691).
There are no grounds for approval of the audit pursuant to § 543 (2) ZPO. The decision concerns an individual case without departing from the case law of the Supreme Court or the Supreme Court. The matter has its focus in the identification and appreciation of facts. The case is neither of fundamental importance, nor does the further training of the law or the safeguarding of uniform case law require a decision of the review court.
With great thanks to René Sternke, who has demanded the verdict at the Higher Regional Court SH and provides all Windwahn readers and stakeholders supportive available!
Comment by Dr. René Sternke on the judgment of the Higher Regional Court
and continuation of his essay ” Infrasound – what you do not hear and what you do not want to know about “
At my request, the Schleswig-Holstein Higher Regional Court sent me the judgment of March 26, 2019, in which the judgment of the single judge of the 2nd Civil Division of the district court of Itzehoe (2 O 336/12), which was announced on 24 September 2018, was based on the judgment given Procedure was lifted. The case was remanded to the Itzehoe district court for a new trial and decision.
This judgment of 26 March 2019 reveals the slippery handling of citizens’ health by a wind energy company, an expert and the Itzehoe district court.At the same time, it is likely to put an end to such treatment of citizens’ health. These institutions and individuals treated the injured citizens with a contempt for human beings and a cynicism that I could not imagine. I read the narrative contained in this judgment with outrage and disgust. Total indifference to the health of others released an unrestrained pursuit of profit without any consideration. This brutal approach, since I now have knowledge of a series of ongoing legal proceedings and contact with several stakeholders, seems to me to be characteristic of wind power development. The complicity of the federal government and state governments, schizophrenic media coverage and the indifference of a poorly informed and disinterested public make it possible for people to deal with people in the midst of a functioning democracy, as is typical of dictatorships. However, the ruling of 26 March 2019 also shows that our democracy lives and that such conditions can not be permanent in a democracy.
I attach the judgment in my anonymous version sent to my Essai, so that the reader can judge independently of my judgments.
A meanwhile 50-year-old operator of a horseshoe company moves in 2010 with his wife and son in a mixed settlement in the outskirts of a village. South of her house there is already a wind farm with 10 wind turbines. From 2010 to 2011, there will be a second wind farm with 7 plants to the northeast, of which several are less than 1km and all less than 2km from the house. In 2015, a third wind farm, consisting of 3 large Vestas, will be built north of the house. In 2017, the second wind farm will be expanded by a facility.
Since the start of the second wind farm, the father of the family has been suffering from sleep disorders, irritability, frequent exhaustion, dizziness, nausea and diarrhea, while his wife suffers from sleep disturbances, drowsiness, ear pressure and irritability. All of these symptoms are described in the DSGS study by Drs. Stephan Kaula, but also elsewhere in the extensive medical literature on the subject as typical effects of transmitted by wind turbines infrasound, as a wind turbine syndrome described. Added to this are other impairments such as noise, light, shadows, disco effects, ice throw and electromagnetic radiation. The man has to cancel several orders due to his illness. The depreciation of the property is 100%.
The claim of the victim is dismissed in September 2018 by the regional court Itzehoe.
The wind energy company
In the face of the suffering of those harmed by them, the company appears on appeal with a cynicism and a denial of reality that are unparalleled. I quote from the judgment: “At distances below 500 m, interference by infrasound is excluded. There is no scientific evidence about the effects of infrasound on human health. Man is not a blue whale. The expert H1 was not biased. Disco and Schattenwurfeffekt are not available. “So the residents of wind farms are not only physically damaged, but on top of that mocked.
During the review by the Higher Regional Court it turns out that the Sacherständige has made a huge number of measurements incorrectly and his findings are always insufficient. It is based on assumptions made during the forecast calculation process and not on reality. He comes to conclusions like this: “At the replacement measuring point, no audible abnormalities of the wind turbine were detected. No evidence of the occurrence of harmful low-frequency noise was found. “And that is not surprising:” The expert himself admitted at his supplementary hearing in the appointment on 26.03.2019 that he had not carried out low-frequency measurements within the building. He also admitted for the measurement of low-frequency sound do not have the appropriate measuring device, because such measurements would have to be performed in the ground, among other things. For that he is not a specialist. “On top of that, it turns out that he receives almost all of his orders from the defendant company and is completely dependent on it. What a miserable gnome!
The district court Itzehoe
The Itzehoe regional court has not only allowed the experts’ inferences to pass, but has even competed with this sloppiness by committing serious procedural errors. The Oberlandesgericht sums up: “Due to the abovementioned procedural defects, extensive and complex evidence is necessary.” It also states: “The first-instance procedural errors identified are to be regarded as serious, as they entitle the plaintiff under Art. 103 (1) of the Basic Law to the right to be heard have impaired. The plaintiffs have a vested interest in ensuring that the trial is not burdened with such deficiencies. “When I think that it is about the destruction of human health in favor of private profit interests, I am shocked by the careless conduct of the court. At the place where the Higher Administrative Court is debating whether to make its own substantive decision or remittal, I have read with discomfort that the case is being returned to the Itzehoer Schludriane. But the reasons are understandable. The public should keep an eye on the progress of events.
The ideological muddling of a capital redistribution over the construction and operation of wind turbines, which ruins the health of many people and exterminates protected species, must stop! I hope that the court will take note of the harmful effects of the infrasound emitted by wind turbines, which has thoroughly demonstrated medical research, and confirm it by a judgment. I also hope that society will not continue to close its eyes to the suffering of a growing number of its members and to sacrifice its physical integrity, protected by the Basic Law, to the greed of companies and landowners. Finally, I expect the political parties to draw practical consequences. Because the harmful effect of infrasound, As a Finnish study shows, goes beyond 15km, wind turbines may no longer be built near residential buildings, but also not in the habitats of protected animals. These industrial plants should be installed in separate industrial areas (polders). If you can neither find nor create, you should look for other forms of energy.