BVwG: Green light for construction project "Traisental Schnellstraße" S 34

Apr 28, 2021 Benn-Ibler Rechtsanwälte

The decision of 06.04.2021 of the Austrian Supreme Administrative Court (Bundesverwaltungsgericht, BVwG) confirmed that the infrastructure project "S34 Traisental Schnellstraße St. Pölten/Hafing (B1) - Knoten St. Pölten/West (A1) - Wilhelmsburg Nord (B20)" may be carried out in accordance with the Environmental Impact Assessment Act (Umweltverträglichkeitsprüfungsgesetz).

Numerous complaints from residents, two citizens' initiatives and several environmental organisations reached the BVwG in this case. After extensive additional investigative work and consulting several experts, the panel of judges came to the conclusion that the decision should be modified in a few areas.

In particular, the decision to strengthen the protection of the corncrake bird species was amended. In the course of securing habitat, forest clearing was approved, which serves to create compensation areas for the benefit of the endangered bird species. In order to compensate for the associated loss of forest area, measures were ordered to improve the forest condition in nearby forests through structural improvements.

Furthermore, additional requirements were standardized as an expression of noise-limiting measures. These mainly represent acoustic inspections of emissions every five years.

The complainants argued, among other things, that several biased experts had been active in the official proceedings. However, the court rejected the suspicion of bias as unfounded.

Affected farmers demanded that they be given replacement land, as the construction of the S34 would involve extensive use of high-quality agricultural land. The court, however, rejected this claim, arguing that only monetary compensation was due in the present case.

The appeal was declared inadmissible as this decision does not depend on the resolution of a legal question which, in the opinion of the Senate, is of fundamental importance.

In the future, the BVwG could once again deal with the "S34" construction project. The Lower Austrian provincial government ordered further conditions within the framework of the official nature conservation procedure. In the event that parties to the proceedings appeal against these orders, the BVwG would again have jurisdiction.

BVwG W102 2227523-1/193E (06.04.2021)