BauGB-Update: These new privileges facilitate battery storage in outdoor areas
Battery storage systems in outdoor areas are a frequent point of contention. The legislator is trying to counteract this by introducing new privileging criteria for battery storage systems in outdoor areas at the beginning of December 2025. The legislative process was swiftly advanced by the Bundestag, resulting in an amendment to the Building Code that categorizes battery storage with a capacity of 1 MWh and above as privileged projects in outdoor areas according to § 35 BauGB. Thus, battery storage systems are recognized as privileged if they are in a spatial-functional relationship with an existing renewable energy facility. Under certain conditions, a privileging criterion can also be met if this immediate connection does not exist.
The classification and legal basis of the new regulation is found in § 35 BauGB, which governs the permissibility of projects in outdoor areas. The new regulation creates a uniform planning legal basis for the approval of storage projects and significantly facilitates the implementation of such projects.
Why battery storage in outdoor areas was previously problematic
Under previous legal conditions, there was no explicit privileging for battery storage in outdoor areas. Privileging was often only possible if the project served the public electricity supply. This particularly restricted deployment possibilities due to the aspect of site-specificity. In addition, the inconsistent application of practices in the various federal states led to considerable legal uncertainty in the approval of storage projects.
Objectives of the new regulation
The privileging of battery storage systems is tied to certain criteria, such as proximity to substations and a minimum capacity of 1 MWh. This simplifies the approval process, particularly for energy cooperatives, which now have an easier path to realizing storage projects and can benefit from new business models. The privileging of battery storage is seen as an important step for the energy transition and the creation of a unified legal basis for storage projects. The legislative amendment enables faster and legally secure implementation of storage projects and reduces bureaucratic hurdles, especially for energy cooperatives.
§ 35 BauGB: Two new privileges for battery storage clearly defined
Storage in connection with renewable facilities
Specifically, the legislator introduces two new privileging criteria: one for battery storage in spatial-functional connection with existing renewable energy facilities (§ 35 Abs. 1 Nr. 11 BauGB) and another for other battery storage under certain conditions (§ 35 Abs. 1 Nr. 12 BauGB). Battery storage is particularly relevant in connection with photovoltaic systems, solar systems, and the use of solar energy because they store solar energy generated during the day, enabling flexible use.
§ 35 Abs. 1 Nr. 11 BauGB privileges future projects that serve the storage of electrical energy in a battery storage system when they stand in a spatial-functional relationship with an existing renewable energy facility. Modern battery storage for photovoltaic systems is usually based on lithium-ion batteries, whose capacity is often specified in megawatt-hours. The network connection is a central criterion for integrating the battery into the energy system to feed the stored electricity into the grid or use it for self-consumption. This formulation allows storage installations to be established particularly near photovoltaic or wind energy systems (so-called co-location) as they are considered complementary infrastructure to the generation facility.
Nr. 12 BauGB: Stand-alone storage and additional requirements
§ 35 Abs. 1 Nr. 12 BauGB supplements the catalog with another privileging criterion that includes battery storage outside the immediate context of renewable production facilities but is subject to additional requirements. These include:
- The project is no more than 200 meters from the property line of a substation or from the property line of a power plant with a rated output of at least 50 megawatts,
- the battery storage system has a rated output of at least 4 megawatts,
- the total area occupied by all approved battery storage systems in the same municipality does not exceed 0.5 percent of the municipal area and is at most 50,000 square meters.
Furthermore, there is the possibility of erecting so-called stand-alone storage that is not directly coupled to a production facility. However, these stand-alone storage systems are less privileged under the current legislation and can only be approved without permission under certain conditions.
Practical significance for operators
This differentiated regulation aims to support the energy transition on one hand, and on the other hand, to ensure controlled land use in outdoor areas. Battery storage increases the self-consumption rate of solar power, reduces energy costs, serves as emergency power supply, and contributes to the reduction of CO2 emissions, further increasing their economic viability and significance for the energy system. In addition, the possibility exists to support the installation of battery storage through funding programs, which promotes both the integration into the energy system and the optimization of energy consumption in households.
How battery storage in outdoor areas store electricity and reduce costs
Battery storage systems are a key component for the successful implementation of the energy transition and the efficient use of solar power from PV systems in outdoor areas. They make it possible to store surplus electricity generated during the day by photovoltaic systems and feed it back into the grid when needed – for example, during the evening hours or when sunlight is minimal. Thus, battery storage contributes to stabilizing the power supply, increasing self-supply, and sustainably reducing energy costs.
Practical significance for operators
The operation of battery storage systems is based on the conversion of electrical energy into chemical energy stored in battery cells. Lithium-ion batteries are particularly widespread as they offer high storage capacity, long lifespan, and high efficiency. The capacity of such storage systems is indicated in megawatt-hours (MWh) and is a decisive factor for the sizing and economic viability of the facility. Depending on the need and location, battery storage can be installed as stand-alone systems or in combination with existing photovoltaic systems.
Advantages for grid stability and self-consumption
The installation of battery storage systems in outdoor areas offers numerous advantages: It enables flexible use of renewable energies, supports grid stability, and promotes energy independence for companies, communities, and private operators. By targeted storage and demand-driven dispensing of electricity, operators of PV systems can increase their self-consumption quota and make themselves less dependent on fluctuating electricity prices.
Funding programs and financing
Another important aspect is the various funding programs available at the federal and state levels. They support the financing and implementation of storage projects and make the investment in modern battery storage systems even more attractive. The selection of the appropriate funding program depends on the location, the planned storage capacity, and the respective project.
With the recent amendment to the BauGB and the introduction of clear privileging criteria for battery storage systems in outdoor areas, an important step toward more clarity and legal certainty has been taken. This makes it easier and faster to realize innovative storage solutions – a decisive impulse for the further expansion of renewable energies and the sustainable reduction of energy costs.
Legal certainty for battery storage projects: Approvals simpler and faster
Easier approval through clear privileging
The introduction of these new privilege criteria is of great legal and practical significance. It creates legal certainty for project developers, investors, and approval authorities by clearly complementing the previously often disputed scope of application of § 35 paragraph 1 number 3 of the Building Code. Instead of having to demonstrate on a case-by-case basis whether a battery storage is “site-specific” or not, projects that meet the legal requirements can now be clearly classified as privileged construction projects. The new regulation significantly simplifies and accelerates the approval procedures for battery storage, facilitating the implementation of storage projects in the federal states.
Planning law advantages for municipalities
From a planning law perspective, this facilitates land planning as no designation in the development plan is required for a privileged construction. Particularly for large storage facilities, which often need to be located in open areas near the network infrastructure, this significantly reduces planning and approval times. At the same time, municipalities retain a certain degree of flexibility, for example, through the spatial and performance-related requirements embedded in the new criteria, to prevent uncontrolled expansion of the storage infrastructure.
Open questions about implementation: What operators need to know now
Interpretation of the spatial-functional relationship
Although the new regulation is an important step, open questions for its practical application are conceivable. In particular, the exact interpretation of the “spatial-functional relationship” or the minimum requirements for storage under number 12 could especially in the initial phase of application be the subject of administrative and administrative court disputes. It will also be necessary to clarify to what extent other urban planning requirements, such as the protection of the landscape image or the assurance of development access, remain relevant. It is particularly noteworthy that the new regulation significantly influences the admissibility of battery storage in open areas, thereby clearly regulating the approval situation.
Nonetheless, the new privilege creates a clear legal framework that sustainably improves the legal situation for battery storage facilities in open areas. This development is significant for the accelerated implementation of storage projects to support decentralized energy supply and grid stability.
MTR Legal Attorneys provides comprehensive advice in Energy Law.
Feel free to contact us!
