Building regulation measure
In German building law, building regulation measures are understood to be an administrative act with which the building supervisory authority can enforce the requirements that public building law places on buildings . As repressive intervention options, building regulations come in addition to the preventive instrument of the reservation of building permits . Since building law in Germany falls under the legislative competence of the federal states, there is no nationwide regulation. However, the regulations in the individual federal states are essentially comparable. The following explanations refer to the legal situation in Lower Saxony as an example.
Similarities
Common to all building regulations are the requirements for their formal legality. Responsibility usually lies with the districts or urban districts; in some federal states, the district office is also responsible. In some cases, however, instead of the rural districts, municipalities belonging to the district with sufficient administrative power are responsible, such as the large independent cities in Lower Saxony. The procedure requires the matter to be discussed with those affected, cf. Section 79 (4) of the Lower Saxony Building Regulations (NBauO). This goes beyond the hearing required for every administrative act , because the authority must also explain here which measures are considered from their point of view and why they see which in which the least possible interference. A special form is not prescribed, so a building regulation measure can also be given orally. However, in this case it is advisable for the citizen to make use of his general administrative right to a written confirmation in accordance with Section 37 (2) sentence 2 VwVfG .
From a material and legal point of view, all building regulations require the addressee to be responsible and they are all discretionary decisions .
Construction discontinuation order
A construction cessation order, colloquially known as a "construction freeze", can be issued if the construction work currently in progress is illegal (cf. § 79 Paragraph 1 No. 1, 1st alternative NBauO), or if the construction products used do not meet the requirements (cf. . § 79 Paragraph 1 No. 2 NBauO). The content is the prohibition of further building. Formal or material non-compliance with building law is sufficient . In the case of a project that requires approval, it is sufficient that it is carried out without a building permit, even if it is actually approved. In this case, the order only serves to ensure the purpose of the building permit procedure, not to ultimately prevent the project.
Order the necessary work to be carried out
Instead of stopping construction, the authority may, as a milder means, also order the work required to be carried out in compliance with building law (cf. § 79 Paragraph 1 No. 1, 2nd alternative NBauO). This legal basis can lead to a modernization and repair offer under § 177 Building Code in competition occur.
Prohibition of the use of certain construction products
Furthermore, the building authority can prohibit the use of certain building products (Section 79 (1) No. 3 NBauO).
Construction removal order
The content of a construction removal order that is popularly known as a demolition order (cf. § 79 Para. 1 No. 4 NBauO; § 79 Para. 1 BauO LSA) is the requirement to completely or partially remove the structure, in other words: to destroy it and thus also destroy the economic value it embodies. In principle, both formal and material illegality must exist for this. This results from the constitutional interpretation of the legal basis on the basis of freedom of property from the fact that it is the most serious economic intervention for the addressee. Only in the case of building projects that do not require a permit, the material non-compliance with building law is naturally sufficient. Due to the legalization effect of a legally effective building permit, a demolition order can only be issued if the requirements for the revocation of the building permit are also met.
Building prohibition
A building use ban (cf. § 79 Paragraph 1 No. 5 NBauO; § 79 Paragraph 1 Clause 2 BauO LSA; § 77 Clause 2 ThürBO) includes the prohibition of the use of a structural system. In particular, this concerns apartments that are declared uninhabitable. The level of illegality required for such a ban is controversial.
The jurisprudence of the higher administrative courts partially allows the formal non-conformity with building law.
According to another view, on the other hand, because of the comparably far-reaching economic consequences, the same standard should be applied as for the construction removal order. So there must also be material illegality.
The prevailing, mediating doctrine allows formal non-compliance with building law to be sufficient for the requirements, but takes into account the presence or absence of material legal violations in the discretionary review. If there is evidence of material legality, then a building use ban should be erroneous.
Web links
Individual evidence
- ↑ z. B. OVG Koblenz , BauR 1997, 103; VGH Kassel , NvWZ-RR 1996, 487
- ↑ z. B. VGH Mannheim , VBlBW 1985, 447 and 1996, 300
- ↑ z. B. Koch, Joachim; Hendler, Reinhard; Building law, spatial planning and regional planning law, Boorberg, Stuttgart / Munich, 4th edition, 2004, § 27 Rn. 28
