Authorities failing to make builders fully compensate for irreversable changes to nature

Under German law, if a person or company builds something, and in doing so cannot avoid an irreversible alteration of nature, the builder is obliged to compensate for this intervention. For example, if a municipality re-zones and area for development - thereby paving over the soil and displacing living organisms - it must compensate elsewhere for this loss of nature. Professor Dr. Albert Reif, Jessica Rabenschlag, Nicolas Schoof and Jochen Schumacher from the Professorship of Site Classification and Vegetation Science at the University of Freiburg assessed nine municipalities in southern Baden to see if they are implementing these compensation obligations. Only in approximately 70 per cent of the cases did the municipalities comply with the law. The researchers have published their study in the latest edition of the journal “Naturschutz und Landschaftsplanung”.

The team also found that in very few cases did those responsible effectively meet the overriding quality objectives for nature conservation, most of which are also mandated by law. For their study, the researchers investigated which compensatory measures under building law implemented between 2007 and 2017, and evaluated them with a view to nature conservation: Reif, Rabenschlag, Schoof and Schumacher analyzed a total of 124 different, clearly differentiated measures - all of which are part of 14 development plans of the municipalities of Au, Bollschweil, Ebringen, Ehrenkirchen, Merzhausen, Pfaffenweiler, Schallstadt, Sölden and Wittnau in the district of Breisgau-Hochschwarzwald; each of these municipalities has a share of Schönberg hill. The Schönberg, an elevation in the foothills of the Black Forest, is of great importance for nature conservation and is meant to be protected by the compensatory measures, the researchers say.

“The transformation of unsettled and unpaved areas into settled and paved areas is a major factor in the loss of biodiversity," according to the study. The researchers say the failure to fully implement the rules is part of a wider pattern in Germany. They say the case study shows that the responsible persons are failing to fully meet their obligations to compensate for the damage they cause. “This is a further indication that this regulation in Germany frequently fails to meet the legal and nature conservation requirements because the parties responsible for the construction work do not adequately comply with it.”

The researchers set out several suggestions for improving the current law. For example, all plans and results of the compensation procedure could be made more easily accessible on a central site in plain language. Authorities could begin immediate, regular checks on compliance with compensation obligations, as there has been no monitoring authority at all to date. Furthermore, political decision-makers should restrict the application of a new, “accelerated” procedure which allows compensation obligations to be waived. “This new procedure has made it considerably easier for local authorities to change the land use, but watering down the compensation regulation is a big mistake from the point of view of resource conservation and future generations.” According to recent findings, the “accelerated procedure” is not primarily applied in urban centers where there is a shortage of housing - instead it favours mostly single-family housing estates in village structures.

Publication:
Rabenschlag, J., Schoof, N., Schumacher, J., Reif, A. (2019): Umsetzung baurechtlicher Ausgleichsmaßnahmen – Fallbeispiel Schönberg bei  Freiburg. In: Naturschutz und Landschaftsplanung 9/2019. pp. 434-442.