Public building law (Germany)
When public construction is in Germany to a branch of the special administrative law , the admissibility limits, order and promote the building and land use controls of the soil. In contrast to this, private building law regulates the reconciliation of interests of private property owners and also includes building contract law .
Public building law is divided into building planning law and building regulation law . The former regulates the legal quality of the soil and its usability. The latter deals with the technical requirements for structural systems and the dangers that emanate from them. While building planning law is regulated by the federal government, building regulations are in the hands of the states . The enforcement of public building law, for example by issuing building permits and intervening in the event of violations of public building law, is carried out by the building supervisory authorities .
Significant legal sources of building planning law are the Building Code (BauGB), the Building Use Ordinance (BauNVO), the Real Estate Valuation Ordinance and the Plan Sign Ordinance . The building regulations are essentially regulated by the state building regulations. In addition, there are numerous statutes and ordinances of the municipalities , which were mainly issued on the basis of the BauGB and the state building regulations.
History of origin
Urban planning regulations have existed since the need arose to regulate the structural use of the soil. It was not until the 19th century that an independent urban development set of rules emerged in Germany, which led to codification at the state level in the second half of the 19th century. Two major legal cultures existed in Prussia at this time: In the western areas, the French Code Napoléon and the mayor's constitution of the town code of 1856 were in force. In the old provinces, the Prussian general land law of 1794 and the magistrate constitution of the town code of 1853 were in force from local law and in the areas east of the Elbe from §§ 65 ff. I 8 ALR (restrictions of the owner when building).
§ 65 I 8 ALR read as follows: As a rule, every owner is authorized to occupy his land with buildings or to change his building. The resulting principle of building clearance was, however, curtailed again by the following regulations, especially by § 66 I 8 ALR, which read as follows: However, to damage or to the insecurity of the common being, or to disfigure the cities and public spaces, no construction and no change will be made.
The Prussian Higher Administrative Court , however, set limits to the restriction by § 66 I 8 ALR by the fact that it only applies restrictively to avert danger. On the basis of this regulation, the regulations for the demarcation of streets and squares from other areas by means of alignment lines were also issued. Until the decree of the Prussian Minister for Trade of May 12, 1855, the communities had no participation rights. Overall, development plans were nothing more than the written laying down of escape lines for a specific area.
Despite several previous attempts (draft of a road ordinance from 1865, HerrenH Drucks. 11; draft of a law on buildings in cities and villages from 1866, HerrenH Drucks. 11) it was only with the law on the creation and modification of streets and squares that it succeeded in cities and rural towns of July 2, 1875 a legal regulation of the right of flight and the problem of compensation. The main motive for its creation was to fight the growing economic difficulties of the municipalities after the war of 1870/1871 : For the first time they were given the right to independently determine lines of flight and the compensation claim of private individuals was limited to a tolerable level.
In retrospect, the law was unable to live up to the exaggerated expectations that it had "become the germ of the inapplicable clump development of our large cities." The law also completely disregarded the unity of ground plan and elevation: the right of flight was a matter for the municipalities, but building police law was one Independent legal matter in the hands of the building police, which led to the fact that in the absence of legal possibilities to intervene, the plots were heavily developed in the depths. The lack of a right to reallocate property forced private individuals to buy building plots often at high prices in order to be able to build on the plots according to the given alignment. The intermediate trade of land by land companies, who bought up large areas and resold the land, which had increased in value through the new parceling, at a profit, flourished. A first draft for the creation of a reallocation right by the Frankfurt Mayor Franz Adickes from 1892 remained in the mansion for years stuck in advisory bodies and could only on 28 July 1902 concerning law apportioning of land in Frankfurt am Main, as Lex Adickes designated adopted become.
In 1950, preparations began for a nationwide uniform regulation of building law for the newly founded Federal Republic. In the Federal Ministry for Housing , the draft for a building law for the Federal Republic of Germany was drawn up by autumn 1950 , which was largely based on the preparatory work of Wilhelm Dittus and Ludwig Wambsganz . It was controversial to what extent the federal government had the legislative competence for this . According to and the Basic Law (GG), federal competence only exists to the extent that it assigns it to the federal government. paragraph 1 number 18 GG gives it the competence for land law. Since there was a dispute between the federal government and the federal states which regulatory areas fall under the term land law, the federal government commissioned the Federal Constitutional Court to prepare a legal opinion that should clarify this issue. The Federal Constitutional Court awarded the federal government the competence for the law of urban planning, the reallocation of building land , the amalgamation of plots of land, land transport , development and land valuation . He was not awarded the competence for building regulations. As a result, the legislature created the Federal Building Act, which came into force in 1960 and was regularly adapted to current needs in the area of building law. In 1987 this law was renamed the Building Code. In the years that followed, the law was amended, some of which were significantly influenced by European directives .
With the help of land-use planning, a municipality determines the way in which its municipality area should be used structurally. Important instruments for this are the land use plan and the development plan . According to paragraph 3 BauGB, paragraph 1 BauGB these are set up by the municipality.
Both land-use plans have in common that errors in drawing up the plan in accordance with continuity of land-use plans.(1) sentence 1 BauGB only affect the effectiveness of the plan if this is expressly provided for by law. If an error is fundamentally significant according to § 214 BauGB, it can also become negligible due to the passage of time according to BauGB. These special rules for the consequences of failures serve to protect the
The land use plan forms the basis of the land-use planning. In accordance with infrastructure is to be built should. If a municipality draws up a zoning plan, it must have it approved by the next higher authority in accordance with Building Code.Paragraph 1 Clause 1 BauGB, it basically covers the entire area of the planning community and presents the main features of the land use there. For this purpose, it determines in accordance with § 5 Paragraph 2 BauGB, for example, which areas should be buildable in which way and which
With the help of the development plan, a municipality regulates the conditions under which a building project is legally permissible within the planned area. According to Section 1 (3) BauGB, the municipality is obliged to draw up a development plan if this is required by urban development and order. According toparagraph 1 BauGB, the development plan has the legal form of a statute.
building plots , for the establishment of traffic areas and public green areas as well as for the type and extent of structural use are possible. A development plan can also precisely specify the dimensions and arrangement of buildings, for example with the help of building lines . Alternatively, there is the possibility of inserting a framework through a development plan, which shows plot areas that can be built over . The plan can also provide design specifications, such as the roof shape , roof pitch , roof orientation and the building materials.BauGB regulates the stipulations that can be part of a development plan . Regulations for the delimitation of the
According to § 2 Paragraph 1 Clause 2 BauGB, the preparation of a development plan begins with the drafting of a corresponding municipal council resolution, which is announced in the customary manner. The community then draws up a draft plan. In the course of this, it carries out an environmental assessment in accordance with Section 2 (4) of the BauGB . In addition, in accordance with Section 3 (1) BauGB, it involves the public and the authorities concerned in the planning. This is intended to involve them in the planning as early as possible.
Once the municipality has drawn up a justified draft and an environmental report, it carries out a formal public participation in accordance with Section 3 (2) BauGB. To do this, she puts her draft out for inspection for a month and makes this known locally. During this time, third parties can submit comments on the plan. When interpreting the plan, the municipality must provide comprehensive information about the options for legal protection against the plan.
In accordance with Section 2 (3) of the BauGB, the municipality continues to determine and weight all issues that are more than marginally affected by its planning and are therefore of importance for the later assessment in accordance with Section 1 (7) of the BauGB. The legislator created this preparatory procedural step on the basis of the European Plan-UP and Plan-EIA guidelines by the EAG Bau of 2004. Until it came into force, legal scholarship considered these steps to be part of the material consideration. The prevailing literature criticizes their procedural classification: An investigation and evaluation is by its nature a material-legal process. A procedural classification creates an unnecessary and artificial splitting of the weighing process.
The municipality then takes a final decision on the development plan. This comes into force in accordance with Section 10, Paragraph 3, Clause 4 of the BauGB with the customary announcement of the resolution.
The effectiveness of a development plan requires that it is justified. According to § 1 Paragraph 3 Clause 1 BauGB, this applies to the extent that the plan is necessary for urban development and order. The feature of necessity is an indefinite legal term that is only conditionally justiciable due to the municipal planning sovereignty. The court can therefore only examine whether the plan obviously does not fulfill the function that it is supposed to fulfill according to the Building Code. For example, the plan is not necessary if the municipality does not pursue an urban development goal with the plan. This is the case, for example, if the municipality only wants to prevent certain projects from being permitted in the planning area, i.e. if it operates prevention planning. A plan that is not enforceable for factual or legal reasons or has no prospect of being realized in a reasonable time is also not required. If there is no plan justification, the development plan is void.
In accordance with Section 1 (7) of the BauGB, the plan must continue to be based on a balance that adequately assesses all issues that are more than marginally affected by the plan. To do this, the community compares the issues identified with each other and tries to resolve tensions between individual issues as effectively as possible. If you make a mistake here, there is a disproportionate balance which, according to Section 214 (1) sentence 1 number 1, paragraph 3 sentence 2 BauGB, is always a considerable error and therefore leads to the nullity of the plan.
The municipality must take into account a number of mandatory requirements when weighing them up. According to spatial planning .Paragraph 2 Clause 1 BauGB, the plan must be developed from the land use plan (development requirement). Furthermore, he must take into account the objectives of
In addition, the municipal land-use plans should not burden the interests of the neighboring municipalities. The municipality must therefore coordinate with them in accordance with Section 2 (2) sentence 1 of the BauGB. Jurisprudence describes this as an inter-municipal voting requirement. Neighboring is not only to be understood in the spatial sense. A community is neighboring even if it is affected by the effects of the planning. Coordination is required if the implementation of the development plan has a significant direct impact on the urban structure or development of the neighboring community concerned.
Legal protection against development plans
A development plan can be attacked in two ways before the administrative court: through a norm control procedure according to § 47 VwGO and through an incidence control in the context of an administrative court action. In accordance with Section 47 (2) VwGO, persons and authorities are entitled to apply in a standards control procedure. If a person submits the application, they must be authorized to apply in accordance with Section 47 (2) sentence 1 VwGO. This applies insofar as it claims to have been violated in its own right and this violation is not obviously excluded. The necessary self-concern exists primarily for people who are subject to the plan. An authority can submit a regulatory review request if it has to apply the plan under review. The test criterion is the validity of the development plan. According to Section 214, Paragraph 3, Clause 1 of the Building Code, the relevant point in time for assessing the legality of the plan is when the resolution is passed.
Securing the land-use planning
- BauGB offer the municipality several instruments with which it can prevent the implementation of a land-use plan that is to come into force in the foreseeable future from being thwarted by the fact that projects are approved on the basis of the legal situation that is still in force.
Change lock, § 14 BauGB
According to Section 14 (1) BauGB, a change block means that projects are not approved for a maximum period of two years, so that the current structural situation is retained. According to Section 14 (3) of the BauGB, only a few projects are excluded from this for reasons of grandfathering. The issue of a change block presupposes that the municipality draws up a resolution on the preparation of a development plan and publishes it in the customary manner. In addition, the lock must be required to secure the planning. This is lacking, for example, when the planning is still too general to contain specific elements that can be protected.
A change block is resolved as a statute in accordance with Federal Administrative Court , it also ceases to be in force if the development plan to be protected is declared null and void as a result of a specific norm review in accordance with VwGO.(1) BauGB. In accordance with Paragraph 1, Clause 1 of the BauGB, it is generally valid for a period of two years. If its prerequisites no longer apply, the municipality must override it. In accordance with Section 17 (5) of the BauGB, the change lock becomes invalid as soon as it becomes inoperable. A change block therefore requires ongoing justification by the planning goal. In the opinion of the
Postponement of planning applications, § 15 BauGB
The municipality can also protect its planning by deferring planning applications in accordance withBuilding Code. This is an administrative act that is permissible under the conditions of the change lock. In addition, the approval of the project must mean that the land-use planning would be made considerably more difficult without the deferment. The deferment gives the building authority the right not to decide on an application for a building permit for a period of up to one year.
The building code regulates the technical requirements for structures and the defense against dangers that emanate from them. According to Articles 30 and 70 of the Basic Law, these regulatory purposes fall within the legislative competence of the states, which is why building law is regulated in state laws. The state building regulations are at the center of building regulations. These are based on a sample design , which is why they have numerous similarities in their systematic basic lines.
The concept of the structure is defined in some state building codes. According to Art. 2 Paragraph 1 Clause 1 of the Bavarian Building Regulations, this is, for example, a system connected to the ground and made from building products, which, according to its intended use, is intended to be mainly used in a stationary manner.
The building regulations regulate the buildability of properties, for example through the obligation to maintain space between them and neighboring properties . They also set specifications for room height , lounge areas in the basement or in the attic , and fire protection requirements . The majority of the federal states also set requirements for the construction of parking spaces .
The building regulations provide two ways of enforcing public building law: On the one hand, they prevent legal violations by linking the right to build a plant to the granting of a building permit . On the other hand, they authorize the building supervisory authorities to intervene against legal violations.
Building permit process
The constitutional guarantee of property through Paragraph 1, Sentence 1 of the Basic Law includes the right to build on a piece of land unhindered. However, according to Article 14, Paragraph 1, Clause 2 of the Basic Law, the right of property is shaped by the legislature, which is why it may restrict the free use of property. With regard to building clearance, due to the potentially great dangers that building structures can pose, he decided on a basic permit requirement: A building structure may only be erected, changed in substance or use or demolished if this has been approved by the building authorities . Thus, the right to build is generally subject to a preventive ban, subject to permission. Due to the constitutional protection of building clearance, however, this decision is usually not at the discretion of the building authorities: If a project is compatible with the provisions of public law, the citizen has the right to be granted a building permit. The relevant regulations include in particular those of building planning and building regulations.
The state building regulations make exceptions to the basic requirement for approval: Smaller systems that have little need for regulatory control often only require a building notice . For certain systems, the state building regulations also provide for a simplified approval procedure in which the building authority carries out a limited control of the system.
The approval process is initiated at the request of the client. The building supervisory authority, the municipality within whose area construction is to be carried out, neighbors and other authorities whose areas of responsibility are affected are involved in the process. The process ends with the granting or refusal of the building permit. If the building permit is granted, it determines the compatibility of the facility with public law regulations and permits construction. It is therefore an administrative act ( the Administrative Procedure Act ). If the building authority refuses to grant the permit, the builder can file an action for obligations (Section 42, Paragraph 1, Alternative 2 VwGO) to have it granted. In some federal states, an objection procedure must be carried out beforehand in accordance with (1) sentence 1 VwGO .
The relationship between building permits and other types of permits, for example in the areas of commercial and pollution control law, is not regulated uniformly . In some federal states, such as Rhineland-Palatinate , the building permit is only issued if the system is admissible under all public law aspects. In other countries, such as Bavaria , the approval process is limited to the examination of building regulations, so that approval is granted when the facility is compatible with building planning and building regulations. In Brandenburg and Hamburg , the building permit includes other permits under public law.
The preliminary building permit gives the client the opportunity to obtain certainty at an early stage with regard to the permissibility of essential elements of a system under building law. It has the legal nature of an administrative act and is issued as a result of a request from the client. With the preliminary ruling, the authority establishes in a legally binding manner that the aspects about which the client had requested do not conflict with the permissibility of the system. In doing so, he anticipates excerpts from the later building permit. However, it does not allow construction to begin.
The partial building permit is a building permit that relates to part of a system. In contrast to the preliminary decision, the partial building permit goes beyond a mere determination by allowing the partial construction of the facility.
If the client is a public authority, the regular approval process can be replaced by an approval process. Here, the building authority can declare a project to be permissible by giving its consent.
The state building regulations assign the building supervisory authorities the task of monitoring compliance with building law standards by systems that have already been built and of taking action against conditions that are contrary to building law. In order to achieve this goal, the state building regulations grant the building supervisory authorities extensive powers to intervene. Section 61 (1) sentence 2 of the State Building Regulations of North Rhine-Westphalia authorizes, for example, the implementation of measures that are necessary for the creation of conditions in accordance with building law. This is done by issuing administrative acts. Typically, these oblige a building to be shut down , a ban on use or the removal of a building . The relevant regulations basically leave the decision on whether and how to intervene at the discretion of the authority.
In jurisprudence and practice, the distinction between formal and material illegality of the facility concerned has emerged as a guide to the way in which discretion is exercised. A facility that requires a permit and was built without a permit is formally illegal. A facility that contradicts material building law is materially illegal. This distinction is important from the point of view of proportionality for the exercise of discretion: For particularly burdensome measures, such as a demolition order, the facility must generally be formally and materially illegal, since an obligation to demolish only because of a lack of approval represented an inappropriately tough measure.
If the building law assessment of an approved facility changes to the effect that it will no longer be eligible for approval in the future, this will not affect its legality: Since the permit determines the permissibility of a facility in a binding manner, it establishes formal protection of the existing system, which is contrary to regulatory intervention. Material protection of continuance exists if an unauthorized structure complied with material law at a time in the past.
Admissibility of a building project under construction planning law
In order for a project to be approved by the building authorities, it must be permissible under building planning law in accordance withto BauGB. Which admissibility requirements are applied to the project depends on the building area in which it is to be built.
The area of application of the building planning law is opened when a project within the meaning of § 29 Paragraph 1 BauGB is present. The construction, modification or change of use of a structure as well as the filling and excavation of a larger scale, the excavation and the deposit are considered to be projects.
The concept of the building structure is not defined in the BauGB. The state law definitions do not apply within the framework of the BauGB, as state law cannot define a federal law term. The concept of an installation in the BauGB has two elements: On the one hand, it is an object that is firmly connected to the ground and, according to the client's wishes, should be long-term. On the other hand, the property is relevant under land law. This applies if it can affect the issues mentioned in environmental protection , in a way that arouses the need for regulatory land-use planning.(5) and (6) of the BauGB, such as
Project in the plan area
Basic scale: development plan, § 30 BauGB
If the planned project is within the scope of a development plan, which at least contains stipulations on the type and extent of structural use, the land areas that can be built over and the local traffic areas, its admissibility according to(1) BauGB is based solely on this. Jurisprudence calls such a plan a qualified development plan. In the cases of Section 30 (1) of the BauGB, a project is permitted if it does not contradict the stipulations of the plan and its development is secured. A contradiction exists if the project is incompatible with the wording of a stipulation, endangers the effective implementation of the plan or changes the character of the planned area. Sufficient development exists if, at the time of its completion, the project is likely to be connected to the infrastructure required for its operation, such as traffic routes and the supply of electricity and water.
Insofar as a development plan does not contain any requirements for the permissibility of a project under building law, its permissibility is based on the provisions on the unplanned construction area in accordance with Section 30 (3) BauGB. Such a plan is referred to in jurisprudence as a simple development plan. A project within the scope of such a plan is permissible if it does not contradict its stipulations or the relevant regulations on the unplanned construction area and its development is secured.
The project-related development plan according to BauGB is a special form of the development plan . This serves to regulate the admissibility of an individual project. Therefore, the admissibility of the project in accordance with Section 30 (2) BauGB is based on its stipulations. In addition, the development of the project must be secured.
Exception and exemption, § 31 BauGB
The development plan cannot cover all eventualities. Therefore, with the legal instruments of exception and exemption, the BauGB offers the possibility of realizing case-by-case justice and giving the competent authorities leeway to decide on the admissibility of a project.
The exception is standardized in purely residential area .(1) of the BauGB and allows the municipality drawing up a development plan to deviate from the generally applicable plan. This enables the building authorities to deviate from the plan in individual cases. As a result, a project may be permissible under building planning law that contradicts the stipulations of the plan, but fulfills the facts of an exception. The creator of the development plan has a lot of leeway when designing an exception. However, he must formulate it in such a way that it is compatible with the specified building area. Furthermore, the exception must not be so broad that development forms, which should only be permitted in exceptional cases according to the development plan, can occur so numerous that they change the defined character of the area. The area plans standardized in the BauNVO contain practically significant exceptions in their respective third paragraphs. For example, in accordance with (3) No. 1 BauNVO, shops and non-disruptive craft businesses may exceptionally be permitted in a
The legal institute of exemption in accordance with Section 31 (2) BauGB aims at the same legal consequence as the exception. According to this, the approval authority can, at its discretion, exempt a project from setting a plan. Unlike the exception, exemption is not provided for in the development plan, so that the licensing authority that grants an exemption breaks the municipality's planning. Therefore, an exemption can only be granted under certain conditions: It must comply with the main features of the land-use planning and be compatible with public interests, taking neighborly interests into account. Furthermore, one of the three reasons for exemption provided for in Section 31 (2) BauGB must be present. According to this, an exemption comes into question if this is required by reasons of the general good, the deviation is justifiable in terms of urban development or otherwise there would be an unintentional hardship for the client.
If the building permit authority is not at the same time the municipality within whose area the project is to be built, the granting of the exception or exemption according toBuilding Code may only be granted with their consent. This requirement aims to protect the constitutionally guaranteed planning sovereignty of the municipality ( Paragraph 2 Sentence 1 GG).
Project outside the plan area
If the client intends to set up a project in an area that is outside the scope of a development plan, its admissibility depends on whether it is to be built indoors or outdoors.
Project in the unplanned interior area, § 34 BauGB
Like the plan area, the unplanned interior area (BauGB) is also generally intended for development. In accordance with Section 34 (1) of the Building Code, the interior is a part of the town with built-up areas. The jurisprudence defines the concept of the district as a building complex, which has a certain weight according to the number of existing buildings and is an expression of an organic settlement structure. This is built on in the context if it gives the impression of unity. This is largely judged on the basis of the external appearance of the buildings. The topography and streets are indications. Since the assessment of cohesion depends on the weighting of a large number of factors, the spatial scope of § 34 BauGB is often controversial in legal practice: If the development gradually thins out towards the edge of the town, it is often difficult to determine at first glance whether a project is being implemented still belongs to the interior. In order to reduce delimitation difficulties, the municipality in whose territory the area to be built on is located can, in accordance with Section 34, Paragraph 4 of the Building Code, determine with the aid of statutes which areas belong to the interior.
An indoor project is permitted in accordance with Section 34 (1) BauGB if it fits in with the nature of the surrounding area and its development is secured. The former applies if, according to its nature, the project is within the framework formed by the existing development and takes this into account. The insertion is assessed with regard to the planned project on the basis of a typical standard: When assessing the planned project, it is checked whether a project of this type is compatible with the building area.
If the immediate vicinity corresponds to one of the building area types regulated in the BauNVO, the insertion is assessed with regard to the permissible type of structural use in accordance with Section 34 (2) of the BauNVO on the basis of the BauNVO. If, for example, the immediate vicinity corresponds to a purely residential area ( BauNVO), a project fits into the typifying consideration if it would be permissible in a purely residential area.
Ultimately, the project must meet the requirements for healthy living and working conditions. In addition, it must not impair the appearance of the village and have no harmful effects on central supply areas.
External projects, § 35 BauGB
The outside area (BauGB) covers all unplanned areas that are outside the inside area. According to the will of the legislature, the outdoor area should be kept free of development as far as possible. Therefore, only privileged projects are generally permitted there.
A project is privileged if it falls under one of the circumstances specified in Section 35 (1) of the BauGB. These include different types of projects, such as agriculture, forestry and horticulture, objects for energy supply and projects that typically come into conflict with neighboring buildings.
A privileged project is permitted if it does not conflict with public interests. This criterion brings about a weighing up: the licensing authority compares the interest in the project with the weight of conflicting public interests. Section 35 (3) of the BauGB lists some public interests that typically conflict with a project, such as causing harmful environmental impacts. Since the legislature preferentially assigns certain projects to the outside area through the privilege, an assumption speaks for the predominance of the interest in the project.
The admissibility of a privileged project in the outdoor area furthermore requires that its development is sufficiently secured. The scope of the necessary development depends largely on the type of project in question. Ultimately, the project must not contradict the stipulations of a simple development plan.
If a project is not privileged, its admissibility is based on Section 35 (2) BauGB. This results in a difference compared to Section 35 (1) BauGB with regard to the protection of public interests: in order for the project to be approved, it must not impair public interests. Whether there is an impairment is determined as a result of a weighing up, whereby the interest in the project, unlike in the context of Section 35 (1) BauGB, is usually only of minor importance.
If the factual requirements of Section 35 (2) BauGB are met, the authority can approve the project in individual cases. The term “can” typically allows for a margin of appreciation, but because of the constitutional protection of building freedom, the authority's discretion is usually reduced to zero. Therefore, jurisprudence reads the phrase “may be allowed” as “are allowed”.
Partially privileged project
Section 35 (4) of the BauGB provides limited privileges for certain projects that fall under Section 35 (2) of the BauGB, which serves to protect existing property. The standard covers projects that involve the modification of a permissibly constructed structure. According to Section 35 (4) BauGB, certain objections may not be raised against their admissibility, such as the contradiction to a landscape plan. Projects that fall under Section 35 (4) of the BauGB are described as partially privileged in law.
Project during the preparation of the plan, § 33 BauGB
BauGB regulates the admissibility of projects that will be within the scope of a development plan for the foreseeable future. The standard aims to speed up the approval process. To this end, it enables a project to be approved before the plan comes into force, which would be inadmissible according to the current assessment criteria, but which would be admissible according to the future. This comes into consideration as soon as a decision on the drawing up of the plan has been taken and public and government participation has been carried out, i.e. the stage of formal planning maturity has been reached. In this case, the project is permissible if it is compatible with the anticipated plan specifications (material planning maturity), the client recognizes these specifications as binding and its development is secured.
Neighbor protection in public building law
Often the client's interest in his project collides with that of a neighbor. In legal practice, such conflicts exist particularly in two case constellations: On the one hand, a neighbor can be bothered by the fact that the builder receives a building permit for his project. On the other hand, he can take offense at a certain type of property use. In the first case constellation, his legal interest is directed towards removing the building permit. In the last-mentioned case constellation, he wants the building supervisory authority to intervene against the client.
The neighbor can pursue his interests by means of various legal remedies, which are directed against the building authorities. In public-law neighborhood disputes, there is a procedural triangle. This results in several procedural peculiarities compared to constellations in which only one citizen and one authority are involved. The public neighbor law deals with the triangular relationships under neighboring law.
In addition to the public neighboring law, there is also the private neighboring law. In this, for example, the owner's claim for injunctive relief from BGB is of great practical importance. With private neighbor protection, the neighbor takes direct action against the client.
Basics of neighboring public law
Concept of neighbor
A possible neighbor is who is in the spatial area affected by a structure. Since the standards of public building law do not refer directly to people but to land, only those who own property in close proximity to the project receive protection. Anyone who has an owner-like legal status on a property, e.g. the holder of a usufructuary right, is also considered a neighbor . In contrast, only legally entitled persons, such as the tenant or the lessee, are not considered neighbors .
The admissibility of administrative appeal proceedings of a neighbor is according to § 42 paragraph 2 Code of Administrative Procedure require that legal standing is. This applies if he claims that his rights have been violated and this violation is not obviously ruled out.
The VwGO expresses the fact that legal proceedings do not function as an objective complaint procedure, but rather aim to protect individual rights. The neighbor is therefore entitled to take legal action if he asserts that his neighbour's plan violates a legal norm that protects him personally. Such third-party protection exists if the standard is intended to protect at least the plaintiff as a neighbor; their purpose must therefore not be limited to the protection of the general public or the public sector.
Whether a standard aims to protect third parties can be seen from its wording. If this is ambiguous, a third-party protective effect can also result from its interpretation. Third-party protection standards contain both building planning law and building regulations law. Third-party protection also develops the property guarantee of Art. 14 GG. However, this basic right is largely superseded by building planning and building regulations as the specification of property law.
Legal science differentiates between general and partial third-party protection norms. A norm that generally protects third parties easily protects everyone who is affected by its regulatory content. On the other hand, a norm that only provides third-party protection if it contains a constituent feature that takes neighborly interests into account is partially third-party protection. From these regulations the jurisprudence derives the requirement of consideration . With its help, it interprets indefinite legal terms, taking into account all relevant vulnerable and worthy interests in order to achieve an appropriate result.
Third party protection in building planning law
General third party protection is provided by the stipulations on the type of structural use according to the BauNVO. According to this, a neighbor who is subject to the stipulations of a development plan can demand that builders in the same building area adhere to the specifications of the plan. In jurisprudence, this right is referred to as the right to preserve the area . It is based on the consideration that the members of a building area form a community of fate under building and land law. A comparable neighboring right exists in the context of a de facto building area according to § 34 Paragraph 2 BauGB. If a project deviates from a third-party protection within the scope of an exception or an exemption under Section 31 of the Building Code, Section 31 of the Building Code also has a third-party protection effect.
The requirement of Section 34 Paragraph 1 Clause 1 BauGB that a project must fit into its environment is partially protective of third parties. In connection with the requirement of consideration, a neighbor can complain that a project does not take sufficient account of its interests. This was assumed by the case law, for example, due to the threat of an increase in noise in the event of a restaurant being converted into a discotheque.
Section 35 of the BauGB is a regulation that partially protects third parties: By granting privileges to certain projects, these are protected from other buildings endangering the enforcement of the privileges. This applies, for example, when residential development approaches a privileged project so that it must fear that it will be confronted with stricter requirements in favor of residential development. Neighboring concerns are also taken into account within the framework of Section 35 (3) sentence 1 number 3 of the BauGB on the criterion of harmful environmental impacts, so that this provision develops third-party protection.
Section 15 (1) sentence 2 BauNVO partially protects in connection with the requirement of consideration by prohibiting unreasonable nuisances or disruptions.
Finally, the balancing requirement of Section 1 (7) BauGB provides third-party protection. In practice, this standard is of particular importance for those seeking legal protection who settle outside the planning area.
Third party protection in building regulations
In building regulations, standards develop third-party protection that protect life, limb and property. This applies, for example, to regulations on the stability of structures and spacing areas . The regulations on defensive fire protection, which are intended to prevent a fire from spreading to the neighboring property, also protect the neighbor.
Process-related peculiarities of a request for challenge
If the neighbor wants to take action against a building permit, possible legal remedies are objection to the objection authority and action for annulment ( (1) Alternative 1 VwGO) before the administrative court. In this way, he can have the building permit withdrawn or revoked.
The neighbor is entitled to take legal action if he asserts that his / her own law has been violated by the building permit. As an exception, the assertion of one's own right is dispensable in the case of Federal Nature Conservation Act or , the Environmental Remedies Act : According to this, a recognized nature conservation association without relying on a subjective right may attack a sovereign measure with the assertion that it violates nature conservation provisions.the
Term of action
Pursuant to announcement of the building permit. If the neighbors are not notified, a period of one year begins for filing a legal remedy in accordance with (2) VwGO as soon as the neighbor becomes aware of the approval or grossly negligently misjudges its issue. This comes into consideration, for example, when the client is clearly beginning to implement his project.(1) sentence 1, (1) sentence 1 VwGO, objections and actions for avoidance are bound to a one-month period. The event triggering the deadline is the
Need for legal protection
The existence of all admissibility requirements for a lawsuit indicates that the plaintiff has an interest in legal protection . In exceptional cases, however, he is denied legal protection because his interest is not worth protecting.
The need for legal protection can, for example, be forfeited: If the neighbor does not seek legal protection for a longer period of time and if he induces the client to trust that this will not happen in the future either, it would violate the general legal principle of good faith if the neighbor nevertheless does Sues. Therefore, this is inadmissible because there is no need for legal protection. The same applies if the neighbor signs the building plans, waives his rights or makes an agreement under civil law. According to the prevailing view in jurisprudence, the waiver is treated analogously to BGB and is only revocable until it reaches the authority. However, it can be contested in accordance with German Civil Code. According to another opinion, the waiver according to BGB is conditional until the approval of the project and is therefore freely revocable until then.
Also inadmissible are actions brought by the property owner who acquired the property solely in order to act as a neighbor against a building project. The reason why legal protection was to be denied in these cases was controversial in legal doctrine and jurisprudence: the prevailing literature considered such actions to be inadmissible due to the lack of legal standing or the lack of need for legal protection. The Federal Administrative Court, on the other hand, held out for a long time that ownership of a piece of land was sufficient for legal standing regardless of the motive for the acquisition. In the meantime, however, it has switched to dismissing such abuse of law as inadmissible.
After all, there is no need for legal protection if the neighbor complains about a violation of the law that he also commits.
Suspensive effect of legal remedies
Pursuant to suspensive effect , so that their filing does not prevent the builder from starting his project. This should give the client the opportunity to start implementing his project as quickly as possible. However, the neighbor can apply for interim legal protection to restore the suspensive effect of an appeal. Due to the triangular relationship within public-law neighborhood disputes, this is done in accordance with (3) sentence 2 VwGO in conjunction with (5) sentence 1, variant 1 VwGO.(1) of the Building Code, contradictions and actions for rescission against the building permit, contrary to the principle of (1) sentence 1 VwGO, have no
Necessary additional cargo
In accordance with process .(2) VwGO, the client must be invited to a contestation
Justification of the neighboring situation
The action to challenge a building permit is successful in accordance with(1) Sentence 1 VwGO, insofar as the permit is unlawful and the plaintiff's rights are thereby violated; the latter is the case if the norm which is violated also has at least the purpose of protecting the subjective rights of the plaintiff. The same applies to an application for provisional legal protection.
Loss of neighbor rights
Both the neighbour's right to file an objection or a lawsuit and his right against the authorities to intervene against the client can be lost. On the one hand, this can happen because the neighbor missed the deadline - usually one month - to file an appeal. This period begins with the notification of the approval to the neighbor or, if he has not been notified, at the point in time at which the neighbor has reliably learned of the approval and its content; he may have to inquire about the content. On the other hand, the neighbor may have lost his rights because he agreed to the project or otherwise waived his rights. After all, he may have forfeited his right of defense (e.g. against a summer house that has been in the gap area for years). This takes more than a substantial amount of time. In addition, the client has to trust that the authorized neighbor will no longer exercise his right of defense after all this time, as well as that the client has acted on this trust in a manner worthy of protection (e.g. renovated the garden house) .
Process-related peculiarities of a commitment request
The neighbor's request for an obligation typically exists in the following situations:
- The builder begins with the construction of a project that requires approval, although there is no building permit (black construction). The neighbor wants to prevent this.
- The owner of a project that required approval originally had a building permit, which was later revoked (for example because of a challenge by the neighbor). The client nevertheless creates facts and continues the construction. The neighbor wants to stop construction.
- The client of a project that does not require a permit (exemption procedure, notification procedure, notification procedure) begins construction. The neighbor wants to prevent this.
In these cases, the neighbor requests that the building authorities intervene and issue an administrative act against the client. He can achieve this goal with the help of a legal action against the authority. Within this, he asserts a right to intervention by the building authorities. Since the legal bases of the building supervisory authority's intervention allow the authority a margin of discretion, the claim of the plaintiff is basically limited to a decision on the intervention free of discretionary error. Citizens only have a right to immediate intervention in the event of a reduction in discretion to zero. This can be the case, for example, if the client's behavior poses a particularly high risk.
A particular problem arises in the case of a project that does not require a permit: There is currently no contestable administrative act for the neighbors. In the exemption procedure, the building only needs to be reported. Third-party protection standards are not checked. The only possibility for the neighbor to obtain legal protection from the outset is to issue an interim order according toVwGO. The neighbor then has to assert a third-party protection right. However, this only coagulates into a right to intervention by the building supervisory authorities if the authority's discretion is reduced to zero. The case law already assumes a reduction in discretion to zero if the interests of the neighbors are affected “more than just slightly”. The reason for this is that with the normally usual approval requirement, a challenge to the approval would be possible even with a simple violation. The exemption procedure is not intended to restrict the protection under neighboring law, but only serves to simplify the procedure for the client. According to a minor opinion, however, there is no reduction in discretion to zero in this case either: the neighbors have the option of civil law, which serves to deregulate.
Neighbor protection in favor of a community
If a property is owned by a municipality, it is protected by building regulations like a private person, so that they can take legal action against a neighboring project. It experiences additional protection through the federal and state constitutional guarantee of municipal self-government . This allows her to take action against the actions of a neighboring community if this affects her planning.
- Andrea Garrelmann: The development of building regulations. Working methods of the state legislators and important reform currents. A transnational presentation of the effects of state legislation. Lang, Frankfurt am Main 2010, ISBN 978-3-631-59569-5 .
Comments on the Building Code
- Ulrich Battis, Michael Krautzberger, Rolf-Peter Löhr (eds.): Building Code: Comment . 13th edition. CH Beck, Munich 2016, ISBN 978-3-406-68750-1 .
- Ralf Bleicher, Werner Klingel, Lucia Wecker, Arno Bunzel, Jörg Finkeldei, Thomas Engel: Construction law . Carl Link Kommunalverlag, Kronach 2017, ISBN 3-556-60120-6 .
- Hans-Joachim Driehaus, Stefan Paetow, Otto Schlichter, Rudolf Stich (eds.): Berlin Commentary on the Building Code . 3. Edition. Heymann, Cologne 2009, ISBN 3-452-24244-7 .
- Werner Ernst, Willy Zinkahn, Walter Bielenberg, Michael Krautzberger (eds.): Building Code . 126th edition. CH Beck, Munich 2017, ISBN 3-406-38165-0 .
- Wolfgang Schrödter (Ed.): Building Code: Comment . 8th edition. Nomos, Baden-Baden 2015, ISBN 978-3-410-24127-0 .
- Willy Spannowsky, Michael Uechtritz: Beck'scher online commentary on public building law. 39th edition. CH Beck, Munich 2017.
Textbooks and manuals
- Wilfried Erbguth, Mathias Schubert: Public building law: with references to environmental and spatial planning law . 6th edition. Erich Schmidt Verlag, Berlin 2015, ISBN 978-3-503-15731-0 .
- Klaus Finkelnburg, Karsten Michael Ortloff, Christian Otto: Public Building Law II: Building Code, Neighbor Protection, Legal Protection . 7th edition. CH Beck, Munich 2018, ISBN 978-3-406-70176-4 .
- Werner Hoppe, Christian Bönker, Susan Grotefels (eds.): Public building law: spatial planning law, town planning law, building regulation law . 4th edition. CH Beck, Munich 2010, ISBN 978-3-406-59163-1 .
- Michael Hoppenberg, Siegfried de Witt (ed.): Handbook of public building law . 48th edition. CH Beck, Munich 2017, ISBN 3-406-34517-4 .
- Stefan Muckel, Markus Ogorek: Public building law . 2nd Edition. CH Beck, Munich 2014, ISBN 978-3-406-65253-0 .
- Franz-Josef Peine: Public building law: Basics of building planning and building regulation law, taking into account spatial planning law and specialist planning law . 4th edition. Mohr Siebeck, Tübingen 2003, ISBN 3-16-148021-X .
- Hubertus Schulte Beerbühl, Public Building Neighborhood Law, 1st edition, Nomos Verlagsgesellschaft, Baden-Baden, ISBN 978-3-8487-3171-8
- Frank Stollmann, Guy Beaucamp: Public building law . 11th edition. CH Beck, Munich 2017, ISBN 978-3-406-71256-2 .
- Bernhard Stüer: Handbook of building and specialist planning law: planning - approval - legal protection . 5th edition. CH Beck, Munich 2015, ISBN 978-3-406-64393-4 .
- Martin Will: Public building law with administrative procedural and state liability issues. 1st edition. CH Beck, Munich 2019, ISBN 978-3-406-73351-2 .
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- Frank Stollmann, Guy Beaucamp: Public building law . 11th edition. CH Beck, Munich 2017, ISBN 978-3-406-71256-2 , § 21, Rn. 51.
- Olaf Reidt: Preliminary remarks on §§ 29 to 38 , Rn. 29. In: Ulrich Battis, Michael Krautzberger, Rolf-Peter Löhr (ed.): Building Code: Comment . 13th edition. CH Beck, Munich 2016, ISBN 978-3-406-68750-1 .