Privileged status under § 35 BauGB

The distinction that matters

In the German Außenbereich, the undeveloped outer zone, building is the exception. § 35 BauGB lists the projects that are nonetheless permissible there, and for solar the legislature extended that list: installations in a 200 m strip along motorways and multi-track railway lines, on conversion sites, on landfills and on formerly military land fall under § 35 (1) no. 8b BauGB.

Where a site does not qualify the route is not blocked, it is simply a different one: the municipality has to adopt a Bebauungsplan, usually after amending the preparatory land use plan. The preparatory plan guides the municipality without binding the individual; the development plan is a by-law and binds.

What that does to the schedule

The difference between privileged and not privileged is essentially a difference in time, and it is a large one. A planning procedure with an initiating resolution, early participation, public display, weighing of interests and a final resolution runs across several council sittings. It also depends on political will that can change between two of them.

Privileged does not mean permit-free. Nature and species protection, heritage protection, municipal consent and site access all still have to be resolved. What falls away is the need to create the planning right in the first place.

The state layer

For designated less-favoured agricultural areas the EEG opening clause applies on top, and each federal state decides on it independently. Whether farmland in such an area may enter an auction is therefore not a national answer. It differs by state and it changes.

When a ground-mount project is being assessed, the planning question comes first, not third. Yield, grid connection and capital structure can be modelled on any site. Whether anything may be built at all decides whether the model has a subject.

In practice that means measuring the distance to the nearest motorway or multi-track railway, checking prior use, and for a site outside the privileged categories documenting the stage the planning procedure has actually reached rather than the intention. An initiating resolution is evidence; a conversation with the mayor is not.

For a project meant to be sold or financed later, this distinction is the core of its ready-to-build status. Planning right is the first item a buyer opens.