Building supervisory authority
The building regulatory authorities - historically also building police authorities or building police offices , in Baden-Württemberg building law authorities - are assigned the defense of the dangers to public safety and order in the field of public building law through German administrative law. The building supervisory authorities must monitor compliance with the public law regulations and the orders issued on the basis of these regulations for the construction, modification, change in use, use, maintenance and demolition of a structural system . In carrying out this task, the building regulation authorities essentially have two options: the building permit process and the building regulation process . In the area of public building law, this area of law is known as building regulations.
Building permit process
The building permit procedure is regulated in the state building regulations of the federal states. According to this, a building permit must generally be issued before the construction, conversion or change of use of a building , unless the building project does not require a permit (procedure-free) or has been exempted from a permit requirement ( permit exemption ). The demolition of a building structure, on the other hand, is often only notifiable or even completely free of proceedings, depending on state law.
For the procedure, see article: Building permit .
A building permit is issued upon application if the building project is in accordance with the provisions of public law that are to be examined in the building permit process. The purpose of the procedure is to ensure the compatibility of the construction project with important regulations of public building law by means of a preliminary check and to prevent a violation of public safety and order.
Building regulations procedure
The building regulations process serves to ward off dangers arising from violations of applicable law, in particular from
- unauthorized construction of structures (so-called "black building")
- unapproved conversion / unapproved change of use / unapproved demolition
- Deviations from the provisions of the building permit
- inadequate maintenance of structures that pose a risk
In fulfilling its task as a hazard prevention authority, the building regulations authority can issue certain administrative acts (notices, administrative orders) that are specified in more detail in the building regulations of the federal states . The administrative order is directed against those who endanger or interfere with public safety and order. The purpose of these measures is to eliminate the hazard.
For this purpose, the building authorities have the following standard authorizations:
- Issue of a construction cessation order
- Issue of a usage prohibition (to reverse the change of usage or to cease all usage)
- Issue of a construction removal order
With the building discontinuation order, the building regulations authority can refer the builder of an undeclared building to the approval route if the structural system is in fact approvable. The construction cessation order is also issued to induce the building owner to carry out the construction project in accordance with the building permit.
In addition to the standard building authority, the building authorities usually have a general clause under building law (e.g. Art. 54, Paragraph 2, Sentence 2 BayBO), on the basis of which other measures can be taken against interferers.
All administrative orders that have been issued on the basis of a power standard must be suitable, necessary and proportionate . To check whether there is a risk to public safety and order and to determine the circumstances that are significant to the authority's discretion, employees of the building authority are authorized to enter properties and apartments.
If the perpetrator or interferer does not comply with the orders of the building authorities, it can threaten and also impose coercive measures, namely penalty payments , substitute performance or substitute imprisonment .
In addition, the building control authority can also impose fines. However, these do not serve to remedy the illegal situation, but to punish an administrative offense that has resulted from the violation .
In some cases, the direct authorities of the German federal states take on the task, in some cases the tasks are carried out by municipal authorities as delegated tasks (→ district-free city , large district town and efficient district-belonging municipality )
Which level of the state administration performs the tasks of the building supervision authority falls within the legislative competence of the states. In larger territorial states, several administrative levels are usually entrusted with this, which are in a superior / subordinate relationship to one another. A distinction is made between the lower, upper and uppermost building control authorities.
In the area of building permit procedures, the construction of buildings and parts of structures, conversion work and demolition projects, the lower building supervisory authorities are usually responsible.
In smaller federal states and in the city-states, the tasks of the building supervisory authorities are usually more concentrated.
Hierarchy of building supervisory authorities in territorial states (using the example of Saxony):
- The supreme building supervisory authority: (specialist ministry) is responsible for issuing legal and administrative regulations, introducing technical building regulations, approving new types of construction, building materials and components, etc.
- The upper (higher) building supervisory authority: (district government) exercises the technical supervision towards the lower building supervisory authority and is authorized to issue instructions to it. In territorial states in which this level is missing (e.g. Schleswig-Holstein), this task lies with the supreme building supervisory authority.
- The lower building supervisory authority: (District Office, independent cities, larger independent cities) monitors all construction projects in their area and reviews and approves building applications.
For the different names see also article: Bauamt
The building supervisory authorities or building supervisory departments are often located within larger authorities such as district offices. As a rule, they are led by a civil servant (engineer, architect or lawyer). The execution of the building regulations procedure is carried out by officials of the higher general administrative service or comparable employees. The technical examination of the applications is the responsibility of employees with advanced technical training. In the field service, employees with building skills training (site supervision, etc.) are often employed. The stability ( statics ) of buildings is usually not checked in the authority itself, but by freelance test engineers who have public approval. As a result, the authority does not need to hold these experts up itself.
The municipal building planning authorities, which draw up the land-use planning , must be distinguished from the building supervisory authorities .
Information on the building supervisory authorities in the German states
As shown above ( organizational structure ), the state legislators regulate which administrative level is responsible for building supervision. As a result, applicants and architects who work across borders often do not know who to turn to and what the building supervisory authorities check when applying for building projects in the approval process. The state laws in building regulations regulate what the building supervisory authorities have to do in detail.
Technical information from the building supervisory authorities is often only related to the respective municipality. Information portals coordinated by the federal states are rarely offered.
In the federal state and city-state of Berlin a corresponding information portal has been set up for all building supervisory authorities in the state. The portal is aimed at "interested non-specialists" as well as those involved in the construction. They want to provide access to information about building in connection with public building regulations. You can find application forms, access to the electronic building permit procedure , regulations, decision-making aids and much more.
The building inspectorates are exposed to criticism in various ways:
- Insofar as the building supervisory authorities are not led by technical staff or the processing of building applications is also carried out by administrative staff, this is criticized. However, this is not seen as a rule by law. For example, § 60 Para. 3 BauO NW provides, which requires: To carry out their tasks , the building supervisory authorities are to be adequately staffed with persons who, due to a university degree in architecture or civil engineering, are allowed to use the professional title "Engineer" and who in particular have the necessary knowledge of public building law, structural engineering and building design.
- The building supervisory activity is viewed as incomplete if it essentially relates to the initial construction of a building or changes requiring approval, while proper building maintenance often remains unsupervised, although the state building regulations would give the building supervisory authorities the legal basis for this. The collapse of the Bad Reichenhall ice skating and swimming pool hall is cited as a drastic example . On the other hand, the repeal of supervision regulations also partially deprives the building supervisory authorities of their instruments. In addition, this form of construction supervision (for example in the chimney sweep ) is viewed by those affected as an interference with their property .
- Lengthy building inspection procedures are seen as a location disadvantage and an investment barrier in Germany. On the other hand, the need with regard to the safety of commercial structures in particular, which also affect the interests of other authorities ( trade supervisory authority and other occupational safety and health authorities ), requires careful tests, the implementation of which can be lengthy in individual cases depending on the complexity of the project. The Basic Law obliges the administration on behalf of the state to take sufficient care of the safety of life and limb of its citizens. A careful building control approval process is therefore indispensable and constitutionally required due to the constitutional requirements.
- In addition to averting danger, the building supervisory authorities also have to prevent disfigurement or, depending on the state building regulations, ensure a design that corresponds to the architecture. With their development plans, the municipal building planning authorities also have the opportunity to provide the building supervisory authorities with design specifications, which they then have to enforce in the building permit. This is sometimes understood by the public as “prescribing a taste”. The Federal Administrative Court has limited the administrative discretion to issue rulings based on the defamation requirement to those exceptional cases in which the structure violates the aesthetic perception of the so-called "educated average person" to an extraordinary degree and does not only impair it. Due to the vagueness of this formulation, there are occasional conflicts between the building owner and the building supervisory authority. Again and again, neighbors turn to the building supervisory authority with the request to take action against structures that are perceived as defacing (so-called third-party objection). Furthermore, the building supervision authority sometimes gets into a conflict between the constitutionally guaranteed artistic freedom and the unwillingness of the citizens, the municipal council or the planning authority of the municipality concerned. Since the so-called Kreuzberg knowledge from 1875 , the building supervisory authority has only been able to exert a limited influence on the structural design. However, in the structure of the client-neighbor-communal planning authority, it is the only body that has the legal means to enforce the corresponding planning will through the building permit or building regulations procedure.
- The mayors of the independent cities are authorized to issue instructions to the employees in building inspection offices. Therefore, a conflict of interest can arise between re-election and the lawful conduct of the building supervisory authority.
History of building supervision
- Johann Christoph von Naumann (1664–1742), Generalakzis Building Director of the Electorate of Saxony and founder of the modern building police in Saxony
- Eberhard Grünert: To the Prussian building police in the 19th century . In: Jürgen W. Schmidt (ed.): Police in Prussia in the 19th century . Ludwigsfelder Verlagshaus, Ludwigsfelde 2011, ISBN 978-3-933022-66-0 , pp. 47-71.
The building regulator in the literature
The Bavarian writer Ludwig Thoma processed the building supervisory authorities in his memoirs.