OVG Hamburg: Mere suspicion is insufficient for soil investigations

Soil investigation measures ordered by the authority are not to be tolerated by the owner if they are based on mere suspicion.

KFR – Kanzlei für Real Estate explains the decision of the OVG Hamburg and its significance for property owners.

Background of the decision

The mere circumstance that environmentally hazardous substances were handled on a property over a period of years is insufficient to establish a suspicion of danger for harmful soil changes or contaminated sites upon which preliminary investigative measures within the meaning of § 9 para. 1 BBodSchG can be based, which give rise to obligations to tolerate interventions in the property. What must additionally be present are indications that pollutants entered the soil through anthropogenic processes within the meaning of § 3 para. 1 or 2 BBodSchV during the handling of such substances.

The case before the OVG Hamburg

The subject of this OVG Hamburg decision is an order based on § 9 BBodSchG in conjunction with § 4 HmbBodSchG by the Authority for Urban Development and Environment (BSU) to the property owner to tolerate the carrying out of preliminary investigations to examine whether harmful soil contamination exists on the property.

In justification, the authority stated that a dry cleaning business had been operated on the property over a period of twelve years in the 1970s and 1980s and that pollutants had in all likelihood been handled there at that time. The intended operation of the dry cleaning business alone would suggest not inconsiderable inputs into the soil. No further reasons were cited by the BSU.

The OVG Hamburg overturned the tolerance order because the statutory prerequisites of § 9 para. 1 sentence 1 BBodSchG for corresponding measures were not present.

Legal assessment

Pursuant to this provision, the authority shall take appropriate measures to investigate the facts if it has indications that a harmful soil change or contaminated site exists.

However, the BSU had failed to provide evidence for the existence of such indications. The mere circumstance that environmentally hazardous substances had been handled on the property over a period of years was insufficient to establish the suspicion of danger required under § 9 para. 1 sentence 1 BBodSchG.

For the assumption of such suspicion of danger, it was required (but also sufficient) that actual indications exist that go beyond a mere suspicion made “in the blue.” Indications within the meaning of § 9 para. 1 sentence 1 BBodSchG are to be assumed where a – even if only minor – factual basis exists that justifies the conclusion that the existence of a harmful soil change or contaminated site is not entirely unlikely.

§§ 3 para. 1 and 2 BBodSchV, which contain a non-exhaustive list of examples of sufficient indications, show that what is relevant is in particular not the mere “presence” of pollutants but rather the “handling” of them and a possible harmful input into the soil.

This was lacking in the case decided by the OVG Hamburg.

Commentary from KFR – Kanzlei für Real Estate

Owners of properties frequently agree to tolerance orders for preliminary investigations by authorities (too) quickly because they assume that they cannot successfully defend themselves against such measures.

However, the lawfulness standards set out by the OVG Hamburg make clear that preliminary soil investigations by the authority are only permissible if it can demonstrate actual indications suggesting a concrete input of pollutants into the soil.

Since the determination of harmful soil changes or contaminated sites can be accompanied by extensive and cost-intensive remediation obligations for which the authority pursuant to § 4 para. 3 BBodSchG can hold not only the originator but also the (possibly subsequent) property owner liable, it is advisable, in order to avoid remediation orders, to examine at the first stage whether the tolerance order for preliminary soil investigations is lawful and – should this not be the case – to challenge it.

Reference: NVwZ-RR 2018, 181 – OVG Hamburg, Judgment of 12 October 2017 – 2 Bf 1/16