Solar Power System in a Protected Area: Constitutional Court Rules Against Additional Permitting Requirement in St. Pölten
Solar power systems are a key component of the energy transition and are becoming increasingly important for private property owners in Austria as well. At the same time, tensions regularly arise—particularly in historic town centers and protected areas—between the expansion of renewable energy and the preservation of the townscape.
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The case began with a property owner who wanted to install a photovoltaic system on her building within a designated protection zone. The competent authority prohibited the project on the grounds that the system would be visible from public spaces and that the design advisory board established in St. Pölten had not approved it. An appeal was ultimately filed against this decision—and it was successful.
What was decided in St. Pölten?
The City Council of St. Pölten had established specific requirements for protected zones in the zoning plan. The goal is to preserve the characteristic building structure and the visual character of certain areas of the city.
For photovoltaic systems, this meant, in particular:
- Within these protected areas, construction could be prohibited if
- the facilities were visible from public areas and
- the “Design Advisory Board” established in St. Pölten did not grant approval.
In practice, this regulation often meant that the installation of photovoltaic systems in the (extensive) protection zones was only possible to a very limited extent.
Decision of the Constitutional Court: A blanket ban on visibility goes too far
The Constitutional Court struck down the relevant parts of the regulation. The mandatory involvement of the Design Advisory Board was a particular focus of the criticism. In the opinion of the Constitutional Court, there is no sufficient basis in the law for such a mandatory disclosure. The relevant provisions merely provide for a Reporting Requirement for photovoltaic systems that are visible from public spaces.
When constructing such facilities, the general requirements of the Lower Austrian Building Code must therefore continue to be observed. Accordingly, changes to structures that are subject to notification must be designed in such a way that they blend into the existing townscape and landscape.
With regard to the general legality of the existing ban on visibility regarding Preservation of Characteristics and Appearance the Constitutional Court did not express an opinion on this matter in principle. It is clear that mandatory approval by a qualified body cannot be a prerequisite here.
Implications for Practice
This ruling applies directly only to the specific regulation of the city of St. Pölten. Given the numerous zoning plans and building code frameworks in Austria, which vary in their specific provisions, only limited general conclusions can be drawn from them for other municipalities.
Nevertheless, the decision Signal effect : Property owners are not required to accept a prohibition issued by the municipality in every case. A prohibition on construction on the grounds of landscape preservation must still be assessed (by the competent authorities) on a case-by-case basis.
