Abstract

The planning of a new railway line or a high-voltage power line is an act of “design”. Such a design can only be determined to a limited extent by a legal framework (requirement to weigh up the various aspects – balancing requirement – and other legal requirements). The outcome of such a planning procedure therefore largely depends on which actor is assigned the remaining planning discretionary power. However, this question of who holds the discretionary power to govern the planning process under sectoral planning law has by no means been clarified in the relationship between the (private) project developer and the public planning approval authority. The answer depends on the legal nature of the balancing requirement, which must allow a certain scope for planning design and a margin of discretion. In the area of sectoral planning, the project developer and the planning approval authority work together in a “division of labour”, so that approaches can be developed in different directions to solve the problem of who is the holder of planning discretionary power. In order to address this issue, it is helpful to look at the procedural structure of plan approval, to compare “classic” instruments of planning on the one hand and plant approval on the other, to examine the special legal effects of sectoral planning decisions and, finally, to consider the specific implications of private project developers. The jurisdiction has a significant influence on the relationship between the developer and the planning approval authority. The findings of this article show that the case law of the administrative courts does not live up to its own principles established specifically for plan approval.