Section
Three:
General Protection
of Nature and Landscapes
Article
18
Interventions in Nature and Landscape
(1) Interventions
in nature and landscape within the meaning of this Act are: changes to the
shape and appearance or utilization of land or changes to the groundwater
table with its close correlations to inhabited soil compartments, that may
significantly impair the ecosystem, or the natural scenery.
(2) The use
of land for agriculture, forestry and fishing is not deemed to be an
‘intervention in nature and landscape’ where it takes account of the aims and
principles of nature conservation and landscape management. Land use for
agriculture, forestry and fishing in compliance with Article 5 paragraphs 4 to
6 and the rules of good practice pursuant to relevant legislation for
agriculture, forestry and fishing and Article 17 paragraph 2 of the Federal Act
on the Conservation of Soils (Bundes-Bodenschutzgesetz) is, as a rule,
not inconsistent with the aims and principles referred to in the first sentence
above.
(3)
Resumption of the use of land for agriculture, forestry or fishing following
temporal restrictions or interruption on the basis of contractual arrangements
or due to participation in public programmes on utilization restrictions,
shall not be deemed to constitute ‘intervention in nature and landscape’. This
shall be applicable with the proviso that, after the expiry of the utilization
restrictions, the use of the respective land for agriculture, forestry or
fishing is resumed within an appropriate period of time to be identified by the
Federal Laender.
(4) The
Federal Laender may lay down more detailed rules and regulations under
paragraphs 1 to 3 above. They may rule that certain changes referred to in
paragraph 1 that normally will not impair the functioning and services of the
ecosystem, or the natural scenery, shall not be deemed to constitute an
intervention. Similarly they may rule that specific types of change shall be
deemed to constitute an intervention if they recurrently fall within the scope
of paragraph 1.
(5) The
Federal Laender shall lay down further rules and regulations in
conformity with the provisions of Articles 19 and 20 and for assuring the
implementation of the measures to be taken within the framework of Article 19.
Protection provisions concerning protected parts and components of nature and
landscapes within the meaning of Section 4 remain unaffected.
Article
19
Obligations of the Intervening Party, Inadmissibility of Intervention
(1) The
intervening party (Verursacher) shall be obligated to refrain from any
avoidable impairment of nature and landscape.
(2) The
intervening party shall be obligated to primarily endeavour to offset any
unavoidable impairment through measures of nature conservation and landscape
management (compensatory measures), or to offset them in some other way
(substitute remediation). An impairment shall be considered to have been compensated
for (Ausgleichsmaßname, compensatory measures) as soon as the impaired
functions of the ecosystem have been restored and the natural scenery has been
restored or re-landscaped in a manner consistent with the landscape concerned.
An impairment shall be considered to have been offset in some other way (Ersatzmaßnahme,
substitute remediation) as soon as the impaired functions of the ecosystem
have been substituted in an equivalent manner or the natural scenery
has been re-landscaped in a manner that is consistent with the landscape. When
determining type and scale of any such measures, the programmes and plans pursuant
to Articles 15 and 16 shall be complied with.
(3) The
intervention shall not be permitted or carried out if the impairments cannot be
avoided or cannot be compensated for within an adequate period of time, or
cannot be offset in some other way, and the interests of nature conservation
and landscape management take precedence over other interests when weighing all
claims on nature and landscape against each other. If biotopes which are
irreplaceable for strictly protected species of wild animals and plants they
harbour, are destroyed as a consequence of the intervention concerned, the
intervention shall only be admissible if justified by imperative reasons of
overriding public interest.
(4) The
Federal Laender may lay down more stringent provisions within the framework of
paragraphs 1 to 3 above; they may in particular regulate crediting of
compensatory measures and stipulate that monetary compensation (monetary
substitute remediation) must be provided for impairments that cannot be compensated
for or offset in some other way in the case of interventions the Federal
Laender may have to permit.
Article
20 Procedures
(1) The
pre-requisite for obligations pursuant to Article 19 is that the intervention
concerned requires the decision of an authority, notification to an authority,
or is carried out by an authority.
(2) The
authority responsible for the decision, receipt of notification or for carrying
out the intervention concerned shall also make the decisions under Article 19
in consultation with the authority responsible for nature conservation and
landscape management, unless a more extensive form of involvement and assistance
is prescribed, or the authority responsible for nature conservation and
landscape management makes the decision itself.
(3) In cases
of intervention in nature and landscape that are preceded by decisions under
Article 19 made by Federal authorities or that are carried out by Federal
authorities, where such interventions are in derogation of the opinion
delivered by the authority responsible for nature conservation and landscape
management, the matter shall be decided by the competent portfolio-related
Federal authority in consultation with the supreme Land authority for nature
conservation and landscape management, unless a more extensive form of
involvement is prescribed.
(4) If any
intervention is planned to be carried out on the basis of a specialized plan (Fachplan),
the measures required under Article 19 to prevent, compensate for or offset in
some other way the intervention concerned shall be set out by the planning
authority concerned, using both text and maps, in the specialized plan (Fachplan)
or in an accompanying landscape conservation and management plan (landschaftspflegerischer
Begleitplan). The accompanying landscape conservation and management plan
shall be deemed to be an integral part of the specialized plan (Fachplan).
(5) If the
intervention concerned is a project that is subject to an environmental impact
assessment in accordance with the Environmental Impact Assessment Act (Gesetz
über Umweltverträglichkeitsprüfung), the procedure involving decisions
under Article 19, paragraphs 1 to 3, must comply with the provisions of the
aforementioned Act.
Article
21
Relationship to Building Law
(1) If
‘interventions in nature and landscape’ are to be expected as a consequence of
the establishment, modification, supplementing, cancelling or repeal of
building master plans (Bauleitpläne) or municipal bylaws pursuant to
Article 34 paragraph 4 first sentence no 3 of the Federal Building Code,
decisions concerning avoidance/ prevention, compensation or substitute
remediation shall be taken in accordance with the provisions of the Federal
Building Code.
(2) Articles
18 to 20 shall not be applied to projects in areas with Bebauungspläne
(‘development plans’) complying with the provisions of Article 30 of the
Federal Building Code, nor shall they be applied during any Planaufstellungsverfahren
(‘plan proposal procedure’) complying with the provisions of Article 33 of the
Federal Building Code, or to parts of built-up areas as specified in Article 34
of the Federal Building Code. Article 29 paragraph 3 of the Federal Building
Code remains unaffected. The applicability of the provisions governing
‘intervention in nature and landscape’ remains unaffected in the case of
projects planned in areas outside of built-up areas (governed by Article 35 of
the Federal Building Code), and in the case of development plans (Bebauungspläne)
substituting plan establishment procedures (Planfeststellungsverfahren).
(3)
Decisions on projects under Article 35 paragraphs 1 and 4 of the Federal
Building Code, and on the construction of residential buildings and other
structures under Article 34 of the Federal Building Code, shall be taken in
consultation with the authorities responsible for nature conservation and
landscape management. If, in cases governed by Article 34 of the Federal
Building Code, the authority responsible for nature conservation and landscape
management fails to express an opinion within a period of one month, the
authority responsible for the decision may safely assume that the relevant
project does not affect issues of nature conservation and landscape management.
Such consultation shall not be required for projects in areas with Bebauungspläne
(‘development plans’) complying with Article 30 of the Federal Building Code,
during any plan proposal procedure (Planaufstellung) complying with the
provisions of Article 30 and 33 of the Federal Building Code and in areas
governed by municipal by-laws on the basis of Article 34 paragraph 4 first
sentence no 3 of the Federal Building Code.