Strengthening the protection of property rights (Discussion: Federal Administrative Court, judgement of 26 March 2026, 10 C 4.25)
Where nature conservation legislation effectively precludes the use of private land, the question arises as to when the limit of social restrictions that must be accepted without compensation is exceeded. In a recent judgement, the Federal Administrative Court (BVerwG) has clarified this limit in favour of the protection of property rights: the focus is not on the farm as a whole – provided it remains operational – but on the specific area subject to the restriction.
1. Context
The case centred on forestry land where waterlogging had occurred as a result of beaver dams; timber production on parts of the estate is said to have become impossible as a result. The owner was not permitted to remove the beaver dams for reasons relating to species protection. Applications for an exemption or dispensation were unsuccessful. The claimants were now seeking compensation (Section 68(1) of the Federal Nature Conservation Act [BNatSchG]). The provision is linked to an ‘unreasonable burden’ on the property in the specific case, provided that this burden cannot be remedied by other measures, in particular through an exemption or derogation. The Higher Administrative Court of Berlin-Brandenburg rejected the claim. It regarded the entire forest district as an economic unit. As substantial parts remained usable for forestry purposes and the management of the entire operation was not economically precluded, it did not consider the reasonableness threshold to have been exceeded.
2. The decision
The Federal Administrative Court (BVerwG) quashed the judgement. According to the BVerwG, the entire forest area cannot automatically be taken as the basis for determining unreasonableness. Rather, the decisive factor is whether there remains ‘sufficient scope for private use’ specifically on the areas affected by beaver dams. In doing so, the court places the emphasis on the private utility of the property – that is, its use for one’s own economic benefit. It is not only the abstract allocation of land ownership that is protected, but also a specific use already lawfully exercised, in this case forestry management. According to the Federal Administrative Court, such use enjoys ‘special protection’. In the view of the Federal Administrative Court, the decision of the Higher Administrative Court of Berlin-Brandenburg would have meant that the prohibition of lawful use on sub-plots – even of considerable size – would have had to be accepted without compensation, even to the point where the entire operation became uneconomical. This is incompatible with the special protection of existing rights and the principle of equality. Owners of larger holdings must therefore not be placed at a disadvantage compared with owners who manage exclusively, or predominantly, the affected sub-area. However, the judgement does not automatically favour every impairment, however minor. The Federal Administrative Court emphasises that insignificant sub-areas may be disregarded. However, the 34 ha in question here – or 65 ha in total – clearly exceeded this de minimis threshold.
Following the referral back, the Higher Administrative Court must now examine whether a claim for compensation actually exists. In particular, it must clarify the extent of the waterlogging caused by beavers, the loss of forestry usability, and any other potential uses, such as economically significant hunting.
3. Conclusion
The ruling strengthens the protection of property rights in the context of restrictions on use under nature conservation law. In practice, the extent of the affected area is the key factor: it is not a matter of determining, on a blanket basis, whether an agricultural or forestry holding as a whole can continue to be operated economically. Rather, it must be assessed whether the specific areas affected can still be used or utilised for private purposes.
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