OVG Lüneburg: Setback requirement for elevated PV systems confirmed

Must an photovoltaic system (PV system) installed on a boundary garage comply with building regulations setback requirements to the neighboring property?
Yes – so ruled the OVG Lüneburg in its decision of 18 July 2023 (Az. 1 LA 118/22).
KFR – Kanzlei für Real Estate explains the decision and its significance for practice.

Background of the decision

A structure has a building-equivalent effect when it impairs the lighting, sunlight exposure and ventilation of the neighboring property, particularly due to its design.

The case: PV system on a boundary garage

This was the case with the PV system in dispute. According to the OVG, even when considered separately from the boundary garage, it was capable of impairing the lighting, sunlight exposure and ventilation of the neighboring property. Although the PV system had a height of less than 2 m, it extended over a considerable length across almost the entire depth of the boundary garage. Furthermore, the elevated solar panels were neither permeable to light nor air and caused significant shading that partially extended to the neighboring garage.
Since, as the OVG emphasizes, setback law aims to protect the lighting and ventilation of the neighboring property “from ground level”, and accordingly the degree of impairment of the neighboring property is determined not by the separate height of “stacked” individual installations but by the height of the uppermost individual installation above the ground, the ground surface is the standard reference point, while another height reference point is the exception, which must be clearly evident from the text, purpose and systematic structure of the NdsBauO.
The complete decision can be found in NVwZ 2023, 1600. More on legal questions regarding solar installations – click here.

Reasoning of the OVG Lüneburg

Due to the continuing energy transition and the increased installation of solar systems on existing properties, the decision is likely to have increased practical relevance. This is particularly true against the background that setback issues are a “perennial topic” especially in neighbor disputes. Here – unlike in the case explained above, in which the owner proceeded against a removal order – a gateway for potential neighbor objections could also potentially open up.
We at KFR – Kanzlei für Real Estate in Hamburg & Munich are happy to assist with any questions and provide support in the area of public construction law and project development.