Requirement of consideration

from Wikipedia, the free encyclopedia

The requirement of consideration or consideration in neighboring public law serves to balance conflicting private interests in the approval of mutually disruptive building projects .

In the opinion of the Federal Administrative Court , the requirement of consideration is not an independent requirement encompassing the entire building law, which may result in further requirements for the admissibility of projects. Rather, it has the status of a simple legal institute with the help of which the respective simple legal norms are to be interpreted.

Planning level

According to Section 1, Paragraph 7 of the BauGB , public and private interests must be weighed up fairly against each other when drawing up the master plan . The basic rules of land-use planning set out in Section 1, Paragraph 6 of the BauGB in the form of requirements, restrictions, objectives and principles represent a binding of the municipal planning discretion, compliance with which both the supervision of the higher administrative authority when planning approval ( Section 6 Paragraph 1, Section 10 para. 2 BauGB) as well as the control by the administrative courts by way of norm control ( § 47 para. 1 no. 1 VwGO ) or incidence examination .

The requirement of conflict resolution is a consequence of the balancing requirement from Section 1, Paragraph 7 of the BauGB and requires that the conflicts of use attributable to the establishment of the development plan be resolved by the development plan itself by means of a fair settlement of the issues involved. However, the development plan may exercise »planning restraint« and relocate individual problem solutions to the subsequent implementation level, provided that they can be dealt with properly in the building permit process .

Admissibility of individual projects

When resolving conflicts of use between individual building projects on neighboring properties, the requirement of consideration is of particular importance. For example, a project that is fundamentally permissible under the relevant regulations may be inadmissible in individual cases if it causes unreasonable impairments such as noise or odor nuisance and thus lacks the necessary consideration. In this way, the requirements of the land-use planning experience a constitutionally required flexibility in individual cases with regard to property protected by constitutional law. As a result, the different types of use should be assigned to one another in a way that takes the other use of the property into account and thus results in mutually compatible uses. Thus the requirement of consideration is to be understood as a fine-tuning instrument.

Plan area

Section 15 (1) BauNVO is classified as a special form of the requirement of consideration . It determines that in the scope of a development plan, generally permissible projects are inadmissible in individual cases if they

  • contradict the nature of the building area in terms of number, location, scope or intended purpose or
  • if they can cause annoyance or disturbances which are unreasonable due to the nature of the building area in the building area itself or its surroundings, or
  • if they expose themselves to such harassment or disturbance.

Section 15 (1) sentence 2 BauNVO is a permissible content and limitation of property within the meaning of Article 14 (1) sentence 2 GG . It should ensure that uses that are likely to cause tension and disruption are assigned to one another in such a way that conflicts are avoided as far as possible. The individual requirements that result from this largely depend on what is to be expected of the beneficiary on the one hand and the person obliged to consider on the other hand, depending on the current situation.

Indoor

A project is permitted within the built-up districts if it fits in with the nature and extent of the structural use, the type of construction and the area of ​​the property to be built over . Whether a project fits in in this sense and is compatible with the surrounding development is judged in each individual case according to the requirement of consideration.

In so-called factual building areas, which are not over-planned, but whose characteristics actually correspond to a building area designated in the BauNVO, the permissible type of project (quality) is assessed solely according to Section 15 Paragraph 1 Sentence 2 BauNVO ( Section 34 Para. 2 BauGB). With regard to the extent of structural use (quantity), however, the BauNVO is not applicable.

Outdoor area

Outside a project is only permitted if it does not conflict with public interests ( Section 35 (1) BauGB). An impairment of public interests exists in particular if the project can cause harmful environmental effects or is exposed to them ( Section 35 Paragraph 3 No. 3 BauGB). An outdoor area project can therefore in individual cases, due to the specific local conditions, lead to considerable nuisance in the neighborhood and thus violate the building law consideration requirement contained in Section 35 (3) No. 3 BauGB.

Possible defense claim

According to recent jurisprudence, the BauNVO standards generally protect neighbors if they deal with the type of structural use. Restrictions arising from this with regard to the use of the land by those affected by the plan are balanced out by the fact that the other landowners are also subject to such restrictions. This also applies in actual building areas.

In the case of the neighboring situation under building law, the type of project and the effects on the environment in the specific individual case must be taken into account. The criterion of spatial proximity is irrelevant. The properties owned by the plaintiff and neighbors do not necessarily have to adjoin one another. The neighboring situation under building law is also property-related and not personal. The plaintiff must therefore prove a real right to the property in question. In addition to ownership, this can also include a right of residence in accordance with § 1093 BGB .

The requirement of consideration is violated in individual cases and the building permit in question is illegal if the project in question causes annoyance or disruption that is unreasonable in the own or adjacent building area . For the proper assessment of the individual case, it is important to weigh up what is to be expected of the beneficiary of consideration on the one hand and the person obliged to be considerate on the other hand, depending on the situation. There is no general definition for this. Rather, this is to be determined in an overall view of the specific individual case.

literature

  • Mark Seibel: The requirement of consideration in building law , BauR 2007, 183
  • Andreas Voßkuhle , Ann-Katrin Kaufhold: Basic knowledge - public law: The building law consideration requirement , JuS 2010, 497
  • Nicole Wolf: Third-party protection in building planning law - On the further development of a stagnating process , NVwZ 2013, 247 ff.

Web links

Individual evidence

  1. ↑ fundamental: BVerwG, judgment of December 12, 1969, Az. IV C 105.66, full text
  2. ↑ BVerwG, judgment of September 12, 2013, Az. 4 C 8.12 full text
  3. ↑ BVerwG: requirement of conflict resolution, plan maintenance and consideration requirement in building planning law ( memento of the original from January 15, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. Hamburg Legal Notes, December 11, 2013 @1@ 2Template: Webachiv / IABot / hrn.jura.uni-hamburg.de
  4. ↑ BVerwG, judgment of November 29, 2012, Az. 4 C 8.11, full text on the coexistence of apartment buildings and noisy wood processing company
  5. ↑ BVerwGE 148, 290 = NVwZ 2014, 370
  6. ↑ BVerwG, judgment of March 16, 1995, Az. 4 C 3.94, BRS 57 No. 175; Fickert / Fieseler BauNVO, 11th edition 2008, § 15 Rn. 8.1; König / Roeser / Stock / Roeser BauNVO, 2nd edition 2003, § 15 Rn. 8th
  7. ↑ BVerwG, decision of July 28, 1999, Az. 4 B 38/99, full text for a small combustion system
  8. ^ Kidney DVBl. 1997, 65; Mampel DVBl. 1994, 1053 [1055]; Konrad JA 1997, 505 [506] with further references
  9. ↑ BVerwGE 67, 334 [338] = NJW 1984, 138 [139] = BRS 40 No. 4
  10. ↑ Schoch Jura 2004, 317 f .; Brohm Public Building Law, 3rd edition 2007, § 18 Rn. 24
  11. ↑ BVerwG, DVBl. 1987, 1276 f.
  12. ↑ Kopp / Schenke VwGO, 15th edition 2007, Rn. 70
  13. ↑ König / Roeser / Stock / Roeser BauNVO, 2nd edition 2003, § 15 Rn. 28
  14. ↑ BVerwGE 51, 15 [30] = NJW 1976, 1760 [1763]; NVwZ 1993, 1184 [1185] = UPR 1993, 221
  15. ^ Sarninghausen, NVwZ 1996, 110