1. An operator is granted a permit to construct a biogas plant. In this plant methane gas is produced by fermentation of manure and agricultural products. The gas is used for production of electric energy. The generator continually emits (day and night) noise of low frequency. This project does not fall under the IPPC law (Bundes-Immissionsschutzgesetz) because its capacity lies under the threshold for IPPC installations. The permit is based on the Land Use and City Planning Act (Baugesetzbuch). The location is in the countryside in the vicinity (200 metres) of an ancient Jewish cemetery. This cemetery is classified as a monument. The last burial was in the late 1930’s. The distance to the next settled area in the neighbourhood community is about 300 metres.
2. In the administrative decision making procedure, the operator presents an expert’s study on environmental impact which concludes that there is no adverse impact on the neighbourhood.
3. In Bavaria, the preliminary administrative review has been abolished.
4. The following Plaintiffs lodged an appeal with the Administrative Court.
Some owners of houses in the neighbourhood.
Some tenants renting accommodation in the neighbourhood.
The community, where the project is located
The residents’ community.
The Association of Jewish Religious Communities (Landesverband de Israelitische Kultusgemeinden), which is a public corporation (Körperschaft des öffentlichen Rechts) and owner of the cemetery.
5. The private Plaintiffs fear smell pollution and noise. The political communities defend their right of self government. The Jewish community invokes it’s right to freedom of religion. It stresses that excrements of swine used in the plant are repugnant to the dignity of the cemetery, especially because swine is regarded as impure in the Jewish religion.
6. In the judicial procedure, the Defendant (The Free State of Bavaria) relies on the expert evidence of a technical civil servant employed by the public authority issuing the permit. This engineer concurs with the assessment of the operator’s expert.
7. In the final public hearing, the Plaintiffs challenge the impartiality of the technical civil servant. They adduce evidence from an independent university expert. The Jewish community seeks to rely on the expert evidence of a religious scientist..
Please give an answer to following questions from the point of view of your domestic law.
Preliminary administrative review
1.1 Is a preliminary administrative review provided?
1.2 If so, is it mandatory? Is the extent of the preliminary administrative review different from the judicial review?
2.1 Have these appellants legal standing?
Owners of neighbouring houses .
The Community, where the project is located
The Residents’ Community
The Jewish Association
2.2 What are the rules, or principles, for legal standing
In your domestic legal system?
3.1 Are there general provisions [standards/regulations] for the assessment of
3.2 If so, who establishes these provisions? What is the legal nature of these provisions? Are these provisions binding on the court?
4.1 How are the court proceedings conducted?
4.2 In particular , can the court act of it’s own motion ? I
4.3. Evidence Gathering Methods
Independent experts from the sector?
The operator’s expert witnesses?
The expert witnesses employed by the public authority?
Burden of proof
5.1 Are there general rules on burden of proof?
5.2 Are there special principles in environmental matters?
5.3 Who has the burden of proof in a case where environmental harm cannot be proved with certainty but cannot be excluded?
Application for new expert evidence in the judicial procedure
Can this be requested or presented , as a mater of right , at this stage of the procedure?
Does the court have any discretion?
Can the court’s final decision be based solely on general technical provisions and/ or the opinion of a technical civil servant?
Is the court competent to assess and determine religious issues?
Extent of judicial review
7.1 Intensity of judicial review/control
Does the relevant court/tribunal exercise a discretionary , in deciding the case ?
If so, what are the limits of the discretion, especially in cases where fundamental rights of the person are engaged (e.g. the right to integrity of the person)?
Scope of judicial review
Which Plaintiffs have the right to invoke the various rights engaged ?
For instance: Can the personal/private or community Plaintiffs invoke the protection of religious freedom ? Can the private Plaintiffs invoke the right of community self government? Can the community organizations invoke the right to integrity of the person?
If the scope of review is limited, which rules are valid for this.?
How much smell is reasonable?
German technical provisions on the assessment of smell emission establish a scale , which varies according to the interest to be protected. There are minimum distances provided. The classifications are , broadly. housing areas, rural areas (villages), industrial areas and mixed areas (with houses and business buildings).
As an example concerning smell: where the minimum distance to housing areas is 300 metres,, the minimum distance to rural areas is, in consequence, one half (150 metres).
In the particular case, the court must decide if the Jewish cemetery has to be protected like a housing area or a rural area. A location in the countryside is regarded as a rural area. In the existing case law, Christian cemeteries in rural areas cannot claim the protection level of housing areas.
Which solution/outcome do you suggest?
Is a difference between Jewish and Christian cemeteries justified?
Do you think that the prosecution of Jewish people in the Nazi period is a material consideration? If so, how should this affect the outcome ?