Balancing error

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Balancing error is a term used in German administrative law . Accordingly, balancing errors that occur in planning law are no longer covered by the planning freedom that otherwise prevails there ("planning fairs" in the terminology of the Federal Administrative Court ). As a result of the principle of proportionality , the balancing requirement applies and thus the ability to check for balancing errors even where it is not explicitly mentioned.

The principles of the balancing error theory were formulated by the Federal Administrative Court in 1969 in the context of a building planning case. In 1974, the court also made it clear that both the weighing process and the weighing result were subject to the examination for weighing errors, logically with the exception of the failure to weigh up. Judge Felix Weyreuther played a key role in these decisions .

The doctrine of balancing errors shows clear parallels to the doctrine of discretionary errors , with the different terms primarily serving to highlight the dogmatic difference. There is always talk of balancing in planning law, i.e. law more final as opposed to conditional programming structure.

A distinction must be made between the following balancing errors:

  • The planning agency does not make use of the planning freedom that is offered to it ( loss of consideration ).
  • The planner has made use of his planning freedom, but:
    • he has not determined and taken into account all the issues relevant to the weighing up (deficit in weighing up ).
    • He planned foreign targets or matters used ( weighing exceeded even considering surplus or balance maladjustment ).
    • he has misjudged the weight of the individual concerns (incorrect assessment ); The optimization requirements , such as the separation principle of Section 50 BImSchG or Section 2 (3) BNatSchG, can be particularly affected .
    • he has failed to find an appropriate balance between conflicting issues ( disproportionate balance ).

According to a mediating opinion, it can be roughly systematized that the first four error categories have an exclusive procedural reference, while the disproportionate weighing is always to be regarded as an error in the weighing result, with the result that legal protection against planning disproportionate to the weighing will regularly lead to the cancellation of the same, while in the In other cases, it is often necessary to check whether a cure is not possible in a supplementary procedure, which is particularly important if proper weighing does not have any impact on the weighing result. However, this opinion is contradicted by the view that weighing misjudgment and weighing disproportionality cannot be separated.

In order to make the weighing requirements more concrete, additional standards were developed. In addition to the optimization requirements, these are the requirement of conflict management (conflicts of use that have to be dealt with in planning should be resolved in the current planning procedure and not in a later approval procedure - however, the principle of planning restraint has an opposite effect as an expression of planning freedom for those cases in which conflict management is more appropriate Level of the individual permit or subordinate planning levels) as well as the obligation to be considerate (in terms of planning law, for example, mutual consideration and tolerance obligations with regard to building areas of different quality).

In the area of ​​building planning law, the question arose with regard to the regulation of today's § 214 Paragraph 3 Sentence 2 BauGB , to what extent this affected the theory of weighing errors. The regulation was interpreted in conformity with the constitution by the Federal Administrative Court, according to which those circumstances that are based on objectively ascertainable circumstances are considered to be obviously significant, and these were of influence if, according to the circumstances of the respective case, there is a concrete possibility that otherwise without the defect would have been planned.

Furthermore, as a result of more recent legislative activities, the still unanswered question arises as to the extent to which the new § 214, Paragraph 1, Clause 1, No. 1 of the Building Code has resulted in a fundamental redesign of the entire doctrine of weighing up, since, according to the wording of the standard, the correct determination and evaluation of planning issues as "Procedure and formal requirements" (and thus as a question of the formal legality of the plan) can be classified, so that the previously generally used understanding of weighing as a uniform, material legality requirement could have to be abandoned. Against this understanding of the wording, it is argued that such a change was not intended by the legislature, which can also be seen from Section 214, Paragraph 3, Clause 2, 2nd half-sentence BauGB.

See also

literature

  • Werner Hoppe , in: Hoppe / Bönker / Grotefels, Public Building Law , 3rd edition, 2004, §5 (comprehensive presentation of the entire doctrine of weighing up)
  • Helmuth Schulze-Fielitz : The flat glass judgment of the Federal Administrative Court - BVerwGE 45, 309. On the development of the discussion about the weighing requirement under planning law. In: JURA 1992, pp. 201-208.
  • Walter Schmitt Glaeser / Eberhard König: Basic questions of planning law. An introduction , JURA 1980, p. 321 ff.
  • Gunnar Folke Schuppert: Verwaltungswissenschaft , 2000, p. 208 u. 524ff.
  • Mario Martini / Xaver Finkenzeller: Die Abwägungs Fehlerlehre , JuS 2012, p. 126 ff.

swell

  1. ↑ Fundamental: BVerwGE 34, 301 (309).
  2. ↑ BVerwGE 45, 309 (315).
  3. ↑ Optimization requirement: BVerwGE 71, 163 (165)
  4. ↑ BVerwGE 64, 33 (36 ff.).