Building permit
A building permit or building permit , in Austria, Switzerland and the city of Bremen also building permit, is public construction , the approval , a building or structure to change to establish or eliminate. It is issued by a building supervisory authority.
Germany
Importance of the building permit
Legal nature
The building permit is a so-called favorable administrative act with a third-party burden: it benefits the client who receives the permit, but may burden his neighbors .
As a so-called “building law declaration of no objection”, it states in a legally binding manner that the project does not contradict regulations that are to be checked in the building supervisory approval procedure. There is a right to be granted. When approving exceptions and exemptions ( § 31 BauGB), which are at the discretion of the licensing authority, the building permit also has a constitutive effect, ie legal grounds.
Right to be granted
According to the prevailing opinion of a landowner has to Art. 14 para. 1 GG the right to his land to till (construction offset). However, according to all state building regulations, the building potential of the property is basically dependent on a building permit.
The permissibility of a project under building planning law is regulated differently in the individual areas of land law:
- A project is permitted within the scope of a development plan if it does not contradict its stipulations ( Section 30, Paragraph 1 of the Building Code).
- A project is permissible within districts with built-up areas (also called interior areas ) if it fits in with the nature of the surrounding area ( Section 34 (1) BauGB).
- In the outdoor area , a project is only permitted if it has a specific function assigned to the outdoor area, for example a horticultural production company ( Section 35 (1) No. 2 BauGB). In addition, the development must be secured in each case , and there must be no public concerns about it.
If the project also meets the building code requirements, the builder has a legal right to be granted the building permit.
If a project contradicts the stipulations of a development plan, exceptions can be permitted that are expressly provided for in the development plan itself ( Section 31 (1) BauGB), e.g. dimensions of the spacing areas that deviate from building regulations ( Section 9 (1) No. 2a BauGB). The stipulations of the development plan, for example a construction ban , can also be waived under certain conditions ( Section 31 (2) BauGB). The exceptional granting of a building permit is in these cases at the discretion of the building permit authority. The client is only entitled to the authority properly exercising its discretion, but not to the granting of an exception or exemption.
Demarcation
With a preliminary decision based on a preliminary building request, a decision is made on individual building law questions of the building project before submitting the building application, such as the admissibility of building law (so-called building permit). With a partial building permit , individual work, components or construction sections can be approved before the building permit is granted.
Conditions of approval
The written notification is issued by the building authority or the building inspection authority (outdated building police) and sent to the client if the project is both subject to approval (i.e. a permit is required ) and can be approved (i.e. the permit is possible ).
Approval requirement
Not all buildings have to be approved. Thus the establishment of certain physical structures, especially smaller residential building in plan areas , in many regional building from the permit requirement exemption (example: Article 57 BayBO.) Or is subject only to the Bauanzeigeverfahren .
The details are regulated differently in the state building regulations.
Eligibility for approval
A project can be approved if
- the building application is complete ( building drawings , building description , energy balance , etc.) and
- the project does not contradict the public law regulations to be examined, in particular the building planning regulations and the relevant building regulations . In the simplified building permit procedure, the building supervisory authority only examines a section of particularly important requirements, such as admissibility under building planning law or compliance with a local design statute . In order to comply with building regulations and structural requirements, the building owner and those involved in the construction, such as B. the draftsman, take responsibility independently (example: Art. 59 BayBO).
Neighboring participation
The building owner can have the neighbors' express consent to the building project confirmed by signing the building template. But even if a neighbor's declaration of consent is not available, the building permit can be granted.
The participation of the neighbors in the building permit process is regulated differently in the federal states: In Baden-Württemberg, for example, all neighbors are generally informed of an existing building application by the respective municipality. B. in Hesse a neighboring participation is only provided for an exemption from neighbor protection regulations .
The neighbor can, if he sees his rights impaired by the building project, appeal against the building permit. According to § 212a BauGB, such an objection (and also an action for annulment) by the neighbor has no suspensive effect . The builder can therefore start construction work as soon as he has received the building permit.
If the neighbor wants to prevent the start of construction work, for example because he is of the opinion that the building permit is unlawful, he must apply to the competent administrative court that his objection has suspensive effect. According to the legal entity principle, the opposing party is the responsible administrative body , such as the municipality. The client is to be invited . The neighbor does not have to worry about having to pay damages if the application is unsuccessful .
Even if the consent has been given, a civil action by the neighbors against the builder remains possible, since the private neighbor law of § 906 BGB et seq. Is not examined in the building permit procedure.
Procedure
The granting of the building permit may require the approval or agreement of another corporation, authority or other body, for example the water management, surveying, health or road construction authorities. The building supervisory authority then requests these bodies to submit a statement by setting a deadline. The respective municipality must also give its municipal agreement to the building application in accordance with Section 36 of the Building Code, unless a legally valid development plan is available and this is adhered to.
The building authority can conduct a building negotiation to clarify questions about the building project.
The fee set by ordinance is payable after delivery of the building permit. Advances are possible.
In Baden-Württemberg, the issuing of the building permit does not yet constitute a building permit. Only with the subsequent issue of the building permit ("red dot"), which is issued when certain further formalities are fulfilled (e.g. naming the site manager ), may with construction can actually begin.
Relationship to other licensing procedures
The building permit is project and property-related. In the approval process, the project is checked for compliance with the public building regulations. For the project, however, other public law regulations, which could also be examined in a special procedure, may also be relevant in addition to building law. The applicable specialist law determines whether these other public law provisions are also checked in the building permit procedure and a building permit is issued or whether the building law requirements are also checked in a special approval procedure and a permit is to be issued according to the other specialist law.
Non-facility-related decisions such as personal restaurant licenses are not part of the building permit procedure from the outset.
Building permit process comes first
Other technical requirements are also checked in the building permit procedure, ie the building permit procedure replaces other approval procedures in cases of so-called other public law imposed, for example in accordance with Art. 6 Para. 3 Clause 1 DSchG in conjunction with Art. 60 Clause 1 No. 3 BayBO for measures on monuments that require building permits.
The building permit process has been suppressed
- The plan approval decision replaces the building permit, Section 75 (1) sentence 1 VwVfG ( formal concentration ).
- The immission control permit includes the building permit, § 13 BImschG.
Building acceptance
After completion of the building (in the case of large building projects, also in between, such as e.g. the shell acceptance), the (state) building regulations provide for a building acceptance or building status inspection , the scope of which is left to the building supervisory authority. In many federal states, there are in fact no more approvals for smaller construction projects. Nevertheless, the client remains obliged to comply with all regulations independently. Any construction defects are recorded during the acceptance process, and the client is obliged to remedy these within a specified period.
The permit must be visibly affixed to the construction site . Only then can excavation and construction work begin. The start of construction and the construction company must be reported to the authorities.
A building permit becomes invalid after a certain period of time if construction is not started. Extensions are partially possible. Any deviation from approved plans requires renewed approval from the authority (so-called architectural approval ). The corresponding state building regulations regulate further details.
Building without a building permit and other violations of the building regulations can be punished as an administrative offense with a fine according to the state building regulations .
Legal protection
Client
If, in the opinion of the builder, the building permit authority wrongly fails to issue a building permit, the person concerned can sue the administrative court for the building permit to be granted. Prior to this, however, he must lodge an objection to the rejection notice with the authorities within one month (in Bavaria and North Rhine-Westphalia an action must be filed immediately, since the objection procedure for the building permit procedure, among other things, has been abolished there, Art. 15 para. 2 AGVwGO). If the objection decision is issued after a certain period of time, the person concerned can file an obligation action before the administrative court within one month . If it is successful, the administrative court orders the building permit authority to issue the building permit.
Neighbor
If the neighbor has not agreed to the building project, he can, under certain conditions, challenge the building permit granted to the builder. However, it is not enough for the building permit to violate public law regulations. Rather, it is necessary that there has been a violation of public law regulations that are specifically aimed at protecting the respective neighbor individually. Recognized third-party protection regulations are z. B. the state building regulations on the border or building distances, the planning law consideration requirement as well as the maintenance of the type of area in overplanned areas (also in the unplanned interior area, the nature of which corresponds to a building area of the building use ordinance, § 34 para. 2 BauGB).
If the neighbor can invoke such a third-party protection norm , he must first lodge an objection with the building permit authority (in Bavaria he must immediately bring an action to the administrative court, Art. 15 para. 2 AGVwGO). If the objection is unsuccessful, the neighbor can bring an action against the granted building permit before the administrative court (third-party action for avoidance ). Objections and actions for rescission by a third party against the approval of a project by the building authorities do not have suspensive effect ( Section 212a BauGB). Therefore, if construction is threatened before the neighbour's legal remedy has been decided, the neighbor can apply to the administrative court to order the suspensive effect of his objection or his lawsuit ( Section 80a (3) in conjunction with Section 80 (5) VwGO) ).
Grandfathering
As with every administrative act, the building permit also has a factual effect . A legally erected building therefore enjoys grandfathering , also against subsequent changes to the relevant building law.
A building erected without a building permit (undeclared construction) cannot be approved retrospectively. In a few cases, however, legalization is possible through subsequent land-use planning , for example by issuing an outdoor area statute in accordance with Section 35 (6) BauGB.
The issuing of a demolition order is at the dutiful discretion of the building supervisory authorities , the exercise of which the administrative courts according to Check § 114 VwGO.
Electronic procedures
There are currently various activities in the Federal Republic of Germany by the federal states and municipalities to convert the building permit procedures to electronic procedures. In the future, all the necessary procedural steps, from the application to the notification, are to be processed and archived fully electronically.
In the federal state and city-state of Berlin, there is the "Electronic Construction and Approval Procedure (eBG)" project . As part of this project, all Berlin building supervisory authorities will receive a web-based specialist application that is linked to other applications (e.g. geographic data or form services) via the Internet through interfaces. The project is a key project of the state government for more service and more eGovernment offers by the authorities on the Internet. Since September 2010, all Berlin building supervisory authorities have been accepting electronic construction templates (construction drawings and descriptions) in addition to the paper version in order to electronically handle the internal participation procedures.
In Hamburg it has been possible since July 1, 2014 to submit building applications electronically. For this purpose, an electronic gateway was set up in the Hamburg portal. The legal basis is regulated in Section 3 of the Building Template Ordinance. A signed copy of the building application must still be submitted in paper form.
statistics
The number of building permits issued is one of the economic indicators .
According to the Federal Statistical Office of November 2007, there was a 31.4% decline in building permits issued in Germany from January to September 2007 compared to the same period in the previous year. The main reason for this was the discontinuation of the state home ownership allowance on January 1, 2006, which only had an impact in 2007.
In October 2016, a total of 19,302 building permits were issued in building construction. This corresponds to a rate of change of -2.4% compared to the same month last year.
Austria and Switzerland
Belgium
In Belgium, the official permit to erect or modify a structure is known as an urban planning permit (sometimes also called building permit in short).
Web links
Individual evidence
- ↑ Udo Steiner , Gerrit Manssen : Public building law according to Bavarian law Regensburg 2012, no. 46, 49
- ↑ Leisner, in: Isensee / Kirchhof (Ed.), HStR, Vol. 8, 3rd edition 2010, § 173 Rn. 194 f.
- ↑ Joachim Lege: Art. 14 GG for advanced learners. 45 Property Questions You Won't Find Anywhere. With special consideration of the building law ZJS 2012, pp. 44, 45
- ↑ Udo Steiner , Gerrit Manssen : Public building law according to Bavarian law Regensburg 2012, no. 64 ff.
- ^ Mario Martini: Simplification of Building Laws and Neighbor Protection Bucerius Law School , 2001
- ↑ Felix Ekardt, Klaus Beckmann, Kristin Schenderlein: Farewell to the building permit - self-regulation versus modern regulatory law Neue Justiz 2007, pp. 481–487
- ↑ building permit; Application for a simplified building permit procedure Supreme Building Authority in the Bavarian State Ministry of the Interior, for Building and Transport, as of October 19, 2016
- ↑ BayObLG, judgment of July 2, 1990, BayVBl. 1991, 28
- ↑ Udo Steiner , Gerrit Manssen : Public building law according to Bavarian law Regensburg 2012, no. 57 ff.
- ↑ Martin Wickel, Karin Bieback: The reorganization of the building regulations approval procedure through the HBauO amendment NordÖR 2006, pp. 45–50
- ↑ BVerwG, judgment of October 4, 1988 = E 80, 259 = NVwZ 1989, 258
- ↑ Building without a building permit: catalogs of fines of the individual federal states, Association for Citizen-Friendly Transport Policy, accessed on January 20, 2017
- ↑ Udo Steiner , Gerrit Manssen : Public building law according to Bavarian law Regensburg 2012, no. 434 ff.
- ↑ Udo Steiner , Gerrit Manssen : Public building law according to Bavarian law Regensburg 2012, no. 136 ff.
- ↑ Norbert Schwaldt, Michael Fabricius: No Building Permits: demolition of illegal construction is difficult to prevent The World , May 14, 2014
- ^ OVG North Rhine-Westphalia, judgment of February 24, 2016 - Az. 7 A 19/14
- ↑ Uta Böker: Construction Ministry of North Rhine-Westphalia: illegal buildings can be legalized Kölner Stadtanzeiger , June 1, 2016
- ↑ Electronic construction and approval process (eBG)
- ↑ Press release of the Berlin Senate Department for Urban Development from October 28, 2010
- ↑ HamburgGateway: building application (HamburgService-Dienst) Retrieved on January 19, 2017.
- ↑ Building permits / values destatis.de, accessed on January 18, 2017
- ↑ Building permits / changes from previous year destatis.de, accessed on January 18, 2017
