Facts
The municipal council of Wohlen decided on the Wohlensee lakeshore protection plan in 1991 and gave preference to the "lakeside path routing" variant. The government council of the canton of Bern approved the plan in 1993 with additions. Appeals were filed against the decision, some of which were upheld. The Administrative Court of the canton of Bern partially upheld an appeal and referred the case back to the municipal council of Wohlen. The appellants filed appeals in public law matters with the Federal Court, which partially upheld the appeals.
The appellants argued that the planned lakeside path would impair a water and migratory bird reserve of national and international importance and violate the HuntA and the Ordinance on Water and Migratory Bird Reserves. The lower court had carried out the required comprehensive balancing of interests in a legally flawed manner.
Considerations
The Federal Court reviewed the balancing of interests as a legal question in principle without restriction. It found that the lower court had misjudged the significance of the interests in the specific case. The public interest in lakeside path routing was legally established, but in the case to be judged, it was to be relativized, as the path would be routed lakeside throughout the section in question and permanent, continuous, and impermeable visual protection would be required to protect the avifauna.
The court found that the lower court had given the interest of bird conservation too little weight, although the Wohlensee was one of 25 national inventory areas with an above-average species diversity. In contrast, the interest in lakeside path routing had been overvalued by the lower court in view…