Leinewelle clears another legal hurdle

The Administrative Court further stated on January 12, 2021:

"The Hannover Fishing Association (Fischereiverein Hannover e.V.) has filed a lawsuit against this permit with the Administrative Court. It argues that the environmental impact of the project was not adequately assessed and that no administrative procedure commensurate with the project’s implications for water management—including appropriate public participation—was carried out. In its view, an environmental impact assessment and a planning approval procedure are required. Furthermore, the plaintiff considers that the exercise of his fishing rights is disproportionately impaired because the project effectively precludes recreational fishing at the site and threatens an overall reduction in fish stocks in the Leine River. The complaint also cites the ecological degradation of the waterbody as a spawning and resting habitat, as well as a migration route for fish."

The court did not accept this line of reasoning. In the chamber’s view, the Hannover Region had sufficiently ascertained the relevant facts in the course of the preliminary environmental impact assessment, based on the numerous expert reports submitted by the intervenor and the involvement of specialized authorities. It had assessed the findings in a transparent manner, concluding that the project was not expected to have any significant adverse environmental impacts and that, therefore, a further environmental impact assessment was not required. The evaluation of the submitted aquatic ecological study, the technical report under the Water Framework Directive, the technical report on species protection, and the preliminary Fauna-Flora-Habitat impact assessment did not suggest, under any of the aspects examined, the possibility of a significant adverse environmental impact resulting from the planned project. It is also relevant that the Leine River in the affected section of the watercourse already offers no passability for aquatic life forms, because the weir downstream of Friederikenplatz cannot be traversed by fish. Furthermore, it is to be expected that the section of the river up to the weir will remain largely accessible to fish even after the facility is constructed, since outside of operating hours the condition of the Leine River would not differ from its current state, and during operating hours a custom-designed “ecopass”—approved by technical experts—is planned, the effectiveness of which must be documented to the relevant authorities in accordance with the granted permit. The plaintiff also unsuccessfully objected to the incorrect choice of procedure. Without the obligation to conduct an environmental impact assessment, it would in fact be within the defendant’s discretion to opt for a plan approval rather than a plan certification. Such a plan approval procedure would not have granted the plaintiff any further rights to participate in the approval process. However, this is a prerequisite for asserting an absolute procedural error.

Nor does the permit infringe upon the plaintiff’s fishing rights. This is a private interest that, in the event of a conflict of use, must be weighed against conflicting interests, evaluated, and reconciled. The conclusion that the fishing rights must give way to the planned project is justifiable under these circumstances, as there is no substantial evidence that the project would adversely affect the overall fish population in the Leine River or interfere with fishing outside the specific project site. The restriction requiring the site on Schlossstraße to be shared with the intervenor in the future is, in the court’s view, acceptable—particularly given the numerous other suitable fishing spots in the immediate vicinity—because no other similarly suitable location within the city limits can be found for the “Leinewelle” project.

Finally, the alleged violation of the requirement under European law to manage the water body in such a way as to prevent a deterioration of its ecological and chemical status and to maintain or achieve good status is also unfounded. The plaintiff is not a recognized environmental association, so that—unlike an environmental association in the context of a class-action lawsuit—it can only raise this argument against an administrative decision if the alleged deterioration directly affects its own protected rights. However, this is not the case, as neither is the right to fish a legally protected interest in this context, nor is there a direct link between the possible ecological or chemical changes and the alleged effects on fishing.

"The 4th Chamber has granted leave to appeal to the Higher Administrative Court of Lower Saxony against the judgment."

(Published on January 13, 2021)