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Edler, J., Keller, M.. Wasser und bauliche Anlagen - eine rechtliche Einordnung. In: Schernewski, G., Glaeser, B., Scheibe, R., Sekścińska, A., Thamm, R. (eds.). Coastal Development: The Oder estuary and beyond. Coastline Reports (8), pp. 141-150. EUCC - The Coastal Union, Leiden, 2007.

Zusammenfassung:

Water and Buildings – German Legal Situation

The objective of this article is to examine the legal settings concerning buildings on and in the water. The article deals on the one hand with general information about the theme and on the other hand with details concerning house-buildings on the water and offshore- windenergy farms. To go offshore is not only a new trend based on windenergy farms and the global trend to renewable energies, no it is a fact that development moves towards the water, so that pressure on the coastal zone is increasing. Firstly there is a description of the legal framework of swimming houses, e.g. the law about the water and the navigation on the water, but also the building law and the planning law. Buildings in and on the water are of importance for the Coastal Development because there are special legal problems. The water, where the buildings like floating houses or windenergy-installations are situated on or in, doesn´t stop at national borders. That’s why it is important to have an instrument that deals with the matter of waterproblems, integrative aspects and cross-border situation. The Integrated Coastal Zone Management (ICZM) is one idea to get suitable solutions for the coastal zone. Furthermore, this article deals with the matter of national German environmental law and the specifics concerning buildings in the harbours, not only new ones but also the former used harbour buildings which are in the focus of new using. Currently, there are no regulations which deal with building activities for residential houses on the water in particular, although a complex intersection of planning, environmental and building law has to be obeyed. Numerous provisions of national law are applicable, like the Federal Building Code and laws of the Laender like Planning Law, Building Regulations, Environmental Protection Law, Water Law and Waterway Law. Since for internal waters different regulations have to be taken into consideration than for buildings on the sea the situation of the buildings and constructions is of importance. Constructions in internal waters and coastal waters close to the coast need permission according to Art. 82 para 1 Water Law of Mecklenburg- Western Pomerania. In seaways, internal waterways or in ports another permission according to Art. 31 para 1 no. 2 Federal Waterway Law is needed. All other buildings or constructions on waterways need a permission according to the law of the Laender. Constructions and buildings on the water also need permission according to Building Law. The applicable regulations – like stableness - have to be interpreted because they are meant for building activities on land. Also problematic is the permissibility according to planning law, which is considered by the responsible community. International law and European regulations have to be considered, too. In port areas the permission of buildings and constructions has to include special requirements because of the dedication of the area as a port. Wind farms are very important for getting energy and they are an instrument against the global warming. There is a very complicated legal situation concerning the areas, where they are planned and built. It depends on the zone after the UNCLOS and territorial and coastal rights of the coastal state, where they are situated, which law is applicable. For offshore windparks in the coastal sea the Federal Immission Control Act is applicable. Because of the interference with environmental interests and navigation only one windpark in the Baltic Sea is permitted so far (Baltic I). In the Exclusive Economic Zone the law to ensure safety for shipping and the environment named "Seeanlagenverordnung" is applicable. Responsible is the Federal Maritime and Hydrographic Agency. So far 15 windpark-projects in the North Sea and three projects in the Baltic Sea are permitted. Until now, however, there is no windpark erected. It´s very important and necessary to get a controlling instrument, that is able to solve conflicts of swimming homes or windenergy farms before and during they are in process of development. Since the coastal waters are sovereign territory of the Federal Laender, the land use planning can influence the building activities. The legislator provided under Art. 7 para 4 Regional Planning Act the possibility to specify suitable water areas as preference, reservation or aptitude area. Further suitable instruments are zoning land use plans.The current legal situation is not about to solve the problems, there have to be some better integrated legislation.

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