Preliminary building permit

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When planning permission or prior notice is referred to in public construction one before submitting a planning application requested binding decision of the building authority on certain questions would be to decide on the construction permit in the process and which can be assessed independently (§ 73 of the Lower Saxony Building Code).

Particularly often it only refers to the permissibility of a project under building planning law (so-called building permit) or to the question of whether a certain type or a certain degree of structural use is permissible. The building regulations of the German federal states standardize the building permit differently. Like the partial building permit and the building permit , the preliminary decision is, however, a uniform administrative act that does not (yet) permit anything. If the requirements are met, there is a legal right to a preliminary decision and the building permit, but a partial building permit is at the discretion of the building authorities.

The required application is called a preliminary construction inquiry or a construction inquiry.

Project reference

The preliminary construction inquiry does not serve to answer abstract legal questions. The questions must therefore on the one hand be accessible to a separate assessment and on the other hand relate to a specific project (requiring a building permit).

Binding effect

In contrast to non-binding information that an authority can provide at any time upon request, preliminary building notices for a subsequent building permit procedure are binding for a limited period of time, for example for three years in Lower Saxony (Section 73 (2) NBauO 2012). The deadline can usually be extended. It is regulated differently whether the contestation of the preliminary ruling, for example by a neighbor, inhibits the expiry of this period. In Lower Saxony this is according to Section 73 (2) sentence 2, section 71 sentence 2 NBauO is the case, in Bavaria not. Art. 71 BayBO does not refer to Art. 69 Para. 1 BayBO.

According to the highest court rulings, the preliminary ruling is not a mere assurance , but an anticipated decision. It can therefore only be revoked if the requirements of § 48 , § 49 VwVfG are met; its binding effect does not lapse under § 38 (3) VwVfG.

The binding effect only extends to projects that completely correspond to the content of the preliminary decision or at most deviate slightly or are less “massive” without changing the basic concept. For this, it depends largely on whether the permit issues are raised again in terms of land law because of the deviation.

Legal consequences

Since the project in question is not yet "approved" with the preliminary building permit, the suspensive effect of objection and action according to Section 212a (1) BauGB.

A preliminary decision that is not yet final is to be included in the building permit according to its content in the manner of a second decision. This means that what has been decided in advance by the building permit (not yet final) will be decided again within the framework of the building permit and will be challenged. Conversely, once the building permit has become final, the partial regulation made by it can no longer be challenged by way of an action against the building permit.

The property-related preliminary decision in the form of a building permit is also evidence under public law about the quality of the building land and thus a price-setting factor. If the landowner or a property buyer, trusting the correctness of an incorrect preliminary decision, makes expenditures, they can demand their reimbursement in accordance with the principles of official liability if, after the binding period has expired or after the preliminary decision has been withdrawn (Section 48 VwVfG), the building permit is issued for reasons fails, from which the preliminary decision should have been denied.

literature

  • Silvia Heimpel: The preliminary building permit. On the future viability of a legal institution. Nomos-Verlag, publications on building law, Vol. 10, 2012. ISBN 978-3-8329-7588-3

Web links

Individual evidence

  1. ↑ Lower Saxony Building Regulations (NBauO) of April 3, 2012, accessed on January 23, 2017
  2. ↑ Udo Steiner , Gerrit Manssen : Public building law according to Bavarian law Regensburg 2012, no. 64, 81
  3. ↑ VG Munich, judgment of April 11, 2016 - M 8 K 14.4953
  4. ↑ BayVGH, judgment of February 14, 2008 - 15 B 06.3463 = NVwZ-RR 2008, 391 mw N .; Decker in: Simon / Busse, BayBO 2008, Art. 71 Rn. 71 ff.
  5. ↑ BayVGH, judgment of March 15, 2010 - 1 BV 08.3157
  6. ↑ BVerwG, judgment of February 3, 1984 = E 69, 1 ff. = NJW 1984, 1473; BGH, judgment of June 21, 2001, NJW 2001, 3054
  7. ↑ BayVGH, judgment of November 4, 1996, BayVBl. 1997, 341
  8. ^ OVG Lower Saxony, judgment of May 8, 2012 - 12 LB 265/10
  9. ^ VG Mainz, decision of March 2, 2007 - 3 L 8 / 07.MZ
  10. ^ VG Cologne, decision of January 13, 2012 - Az. 8 L 1804/11
  11. ↑ BVerwG, judgment of March 17, 1989 = DVBl. 1989, 673 = NVwZ 1989, 863
  12. ↑ BGH, judgment of September 23, 1993 = DVBl. 1994, 281
  13. ^ BGH, judgment of June 30, 1988 = NJW 1988, 2884