Area conservation claim

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The right to preserve the area is understood to mean a legal institution from public building law in Germany. The entitlement enables a property owner in a certain building area to defend himself against the approval of a building project in that building area. The establishment of building areas with a specific regional character by a development plan can therefore trigger a neighbor-protective effect in favor of all property owners in the respective building area . The owners of the properties located within a building area are linked by a neighborly community relationship, which establishes a mutual exchange relationship.

The claim to preservation of the area is a defensive claim. It is triggered by the approval of a project that is incompatible with the character of the designated building area. The BVerwG sees this as an attack on the neighborly exchange relationship, which is worth protecting, in that the area can become alienated. The neighbor receives a protection / defense claim that goes beyond the requirement of consideration , because it does not matter whether the attacked project actually leads to a demonstrable impairment of the neighbor according to the local conditions, as long as it is in violation of building law.

This has two effects: First of all, it restricts the possible uses of one's own property , because the owner must adhere to the stipulations of the respective territorial definition. On the other hand, all other neighbors in the same building area have to adhere to the restrictions themselves.

In order to trigger the claim to preservation of the area, a development plan is still not necessarily required. Even in unplanned interior areas, the claim to preservation of the area unfolds the above. Effects if the requirements of § 34 II BauGB are met, i.e. the nature of the immediate vicinity corresponds to one of the building areas of the Building Use Ordinance . If only the prerequisites of § 34 I BauGB are met, the claim only exists in the event of a lack of "integration of the project in the immediate vicinity", i.e. a violation of the requirement of consideration. In doing so, however, the neighbor must provide substantiated evidence that his concerns are actually, specifically and significantly impaired.

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  • BVerwGE 94, 151 = NJW 1994, 1546
  • BVerwG NVwZ 2008, 427
  • Schröer: Public Building Law - Limits of the Area Conservation Claim , Neue Juristische Wochenschrift (NJW) 2009, 484 ff.