Planning approval

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The plan approval is a special administrative procedure to be carried out in the Federal Republic of Germany in the cases prescribed by law on the admissibility of spatially significant projects and infrastructure measures .

According to the legal definition in Section 3 Paragraph 1 No. 6 of the ROG, “plans including spatial planning plans, projects and other measures that take up space or influence the spatial development or function of an area, including the use of the public areas intended for this, are relevant to space Funding ". Spatially significant projects such as a railway line or an airport affect a large number of public and private concerns because of their spatial dimensions and actual effects (noise, damage to the environment, costs). Compared to building projects that are carried out on a single plot of land, they trigger special tensions that need to be dealt with. These concerns require a special determination and weighing in a formalized procedure. The plan approval procedure is regulated in more detail in Sections 72 to 78 of the Administrative Procedure Act (VwVfG), in the administrative procedure laws of the federal states, which are mostly identical in content, and in a large number of specialist planning laws.

The final planning approval decision is an administrative act .

Projects subject to planning approval

The following projects in particular require planning approval:

The decision of a development plan is not a plan approval . The preparation procedure for a development plan is designed in a similar way to the plan approval procedure, but the resolution of the development plan is a statute and not an administrative act. The immission control approval is closely based on the plan approval procedure .

The infrastructure projects in the areas of rail and waterways mentioned in Section 2 Clause 1 of the Measures Act Preparatory Act (MvgG), which can be approved by law instead of an administrative act , do not require planning approval .

Determination procedure

Applicable Regulations

Sections 73 to 78 VwVfG essentially apply to projects that require planning approval. Of central importance is the hearing procedure regulated in § 73 VwVfG with the acc. Section 73 (6) VwVfG mandatory public hearing .

With the law to improve public participation and standardization of planning approval procedures (PlVereinhG) of May 31, 2013, certain specialist planning laws were changed. According to this, the hearing authority can dispense with a discussion in individual cases, in deviation from Section 73 , for example under Section 18a AEG when planning railway operations. With the same act, a regulation on early public participation was included in the Federal Administrative Procedure Act ( Section 25 (3) VwVfG). “Early” means public participation “if possible before an application is submitted” by the developer.

Jurisdiction

Which authority for the implementation of the plan approval process responsible is governed by the applicable trade law and national law implementing provisions. The hearing authority and the determining authority do not have to be identical. In the planning approval under railway law, the hearing takes place, for example, by state authorities such as the district government, the regional council or the state administration office, but the planning approval is carried out by the Federal Railway Office .

Consultation process

Initially, the project proponent his plan consisting of submitted drawings and explanations of the hearing authority to carry out the hearing process. The hearing authority then requests the authorities whose area of ​​responsibility is affected by the project to comment and also prompts the municipalities in which the project is likely to have an impact to publicly display the plan for a period of one month within three weeks of receipt . An interpretation can be dispensed with if the group of those affected is known and they are given the opportunity to inspect the plan within a reasonable period of time.

Authorities whose area of ​​responsibility is affected and associations entitled to take legal action can submit statements on the plan. Natural persons whose interests are affected by the project, in particular local residents, can raise objections to the plan within certain deadlines at the hearing authority or the municipality (Section 73 (3a) and (4) VwVfG). Objections are factual counter-submissions aimed at preventing or modifying the proposed project.

After the objection period has expired, the hearing authority discusses the objections raised against the plan in good time, the statements made by associations and the statements of the authorities on the plan with the sponsor of the project, the authorities, those affected and those who have raised objections or submitted statements (Section 73 (6) VwVfG). The main difference to the informal administrative procedure in the plan approval procedure is the extensive participation of citizens , whose private interests are affected by the project, and the authorities, whose public area of ​​responsibility is affected by the project. The public hearing takes the place of hearing those involved in simple administrative procedures ( Section 28 VwVfG). The purpose of citizen and authority participation is to enable the determining authority to research the issues concerned at an early stage and to evaluate them appropriately.

The hearing authority summarizes the result of the hearing procedure in a statement and forwards this to the plan approval authority within one month after the conclusion of the discussion with the plan, the statements of the authorities and the associations as well as the unresolved objections (Section 73 (9) VwVfG).

The interpretation period has a material preclusive effect (Section 73 (4) sentence 3 VwVfG). After the objection period has expired, the planning approval authority is prevented from considering objections raised late. A lawsuit against the planning approval decision is then unfounded because the plaintiff is excluded with his complaint because of missing the deadline.

Planning approval decision

The plan approval decision concludes the approval procedure (Section 74 (1) sentence 1 VwVfG). According to its legal nature, it is a special type of general disposal and thus an administrative act within the meaning of Section 35 VwVfG. The determining authority has a comprehensive planning discretion , the balancing requirement applies . In the planning approval decision, it decides on the objections on which no agreement was reached in the discussion before the hearing authority. It has to impose on the executing agency of the project precautions or the construction and maintenance of facilities that are necessary for the public good or to avoid negative effects on the rights of others. If such precautions or installations are impractical or incompatible with the project, the person concerned is entitled to appropriate compensation in money.

The decision is served to the parties involved in the proceedings by means of an exhibition in the municipalities, in the case of more than 50 persons affected by the public announcement of the interpretation in the official publication of the competent authority and also in local daily newspapers.

In the cases of Section 74 (6) and (7) VwVfG, planning approval can be issued instead of a plan approval decision .

Legal effects

The plan approval develops a comprehensive formal concentration effect ( Section 75 (1) sentence 1 VwVfG, spurious plan approval competition ). The establishment of a plan replaces all other official approvals, awards, permits, permits or consents that would otherwise have been required for the project. However, this does not affect the determination authority's duty to check the compatibility of the project with all those public law provisions that would otherwise have been checked in the superseded official approval procedures. To this end, the hearing authority requests the authorities whose area of ​​responsibility is affected by the project to comment and, after the hearing process has been completed, forwards them to the determining authority with their own opinion ( Section 73 (2) and (9) VwVfG). Without the concentration of procedures, a large number of individual public law procedures (e.g. according to the Federal Immission Control Act or the Building Code ) would have to be carried out in the case of superordinate, spatially significant specialist planning , so that effective and consistent planning would be almost impossible. However, only public relations between the sponsor of the project and those affected by the plan are legally regulated.

Claims for injunctive relief and removal are excluded after the plan cannot be contested. At most, precautions against unforeseeable adverse effects of the project or compensation in money can be requested ( Section 75 (2) VwVfG).

The implementation of the plan must begin within five years of the non-appealable date. Otherwise the plan becomes invalid (Section 75 (4) VwVfG).

Change and cancellation of plans

If the established plan is to be changed before the project is completed, a new plan approval procedure is required (Section 76 VwVfG). If a project, the implementation of which has started, is finally abandoned, the plan approval authority must revoke the plan approval decision. If the implementation has already started, the developer must restore the former state of the claimed area ( Section 77 VwVfG).

Plan competition

If several specialist plans meet by using the same space ( real competition for plan approval ) and at least one of the plan approval procedures is regulated by federal law, only one plan approval procedure takes place, legally regulated in Section 78 VwVfG or priority special laws such as the Railway Crossing Act (EKrG).

If a project requiring planning approval is not compatible with the land use envisaged in a master plan and if an agreement between the municipality and the planning authority cannot be reached, the technical planning concerns take precedence if they significantly outweigh the urban planning concerns ( § 38 , § 7 BauGB). The municipalities must incorporate incontestable planning approvals in their land-use plans for information purposes ( Section 5 (4), Section 9 (6) BauGB). In this respect, specialist planning is privileged compared to land-use planning ( material concentration effect ).

The decisive reason for the privilege of specialist planning over land-use planning is the material consideration of urban planning issues guaranteed in the specialist planning process and the participation of the municipality in the process.

Appeal Process

The Administrative Court Regulations (VwGO) apply to formal legal remedies against planning approval decisions . A preliminary preliminary legal is not required (§§ 74 para. 1 sentence 2, 70 Law on Administrative Procedure § 68 para. 1 sentence 2 Code of Administrative Procedure).

Admissibility of a claim

  1. Administrative legal process
    • General clause of § 40 Paragraph 1 Sentence 1 VwGO .
    • In principle, the competent court is the Higher Administrative Court ( Section 48 (1) No. 7, 8, 9 VwGO), exceptionally also the Federal Administrative Court in the first and last instance , especially in the case of supraregional public transport projects such as the operating facilities of a railway including long-distance power lines ( Section 50 (1) No. 6 VwGO, § 18e AEG)
  2. Admissible mode of action
    • The planning approval decision is an administrative act. The regulation results from the concentration effect.
    • The admissible type of action is the action for annulment, Section 42 Paragraph 1, 1st Var. VwGO.
  3. Legal standing
  4. Preliminary proceedings
    • A preliminary procedure is not planned. This results from the reference of § 74 Paragraph 1 Sentence 2 VwVfG to § 69 , § 70 VwVfG. According to § 70 VwVfG there is no need for a preliminary procedure.
  5. Term of action
    • The period begins with the announcement, § 74 Abs. 4 and 5 VwVfG.
    • If no announcement has been made, the legal concept of forfeiture applies analogously, or § 242 BGB , if no more specific regulation exists.
    • A more specific regulation with the same consequence is z. B. Section 2 (4) UmwRG .

Merits of a lawsuit

The legality of a plan approval decision is assessed according to the general rules for administrative acts.

  1. Procedural defects
    • The procedural acts mentioned in Section 45 (1) VwVfG, such as the justification of the planning approval decision, the hearing of those involved or the involvement of other authorities, can be rescheduled and thus cured until the last factual instance of an administrative court procedure has been concluded.
  2. Deficiencies in weighing up the public and private interests affected by the project
    • Assessment deficiencies are only significant if they are obvious and have an influence on the assessment result. Significant deficiencies in the assessment or a violation of procedural or formal requirements will only result in the revocation of the plan approval decision if they cannot be remedied by supplementing the plan or by a supplementary procedure (Section 75 (1a) VwVfG). Discretionary considerations can also be added in administrative court proceedings ( Section 114 sentence 2 VwGO).

Austria

The hearing / plan approval procedure or the plan approval decision as the basis for planning approval for certain projects in the Federal Republic of Germany corresponds to the procedure of submission to the authorities in the Republic of Austria . The "submission procedure" is used for the official review or, subsequently, the approval of the planning by the authority via notification .

See also

Web links

Individual evidence

  1. ↑ Text and amendments to the law to improve public participation and standardization of planning approval procedures (PlVereinhG)
  2. ↑ Joachim Jahn: Large projects should be approved more quickly. In: FAZ , January 6, 2011.
  3. ↑ Procedure for the planning approval procedure under railway law for the three-track expansion of the Betuwe route in the Voerde urban area
  4. ↑ cf. BVerwG, judgment of 9 June 2010 - 9 A 25.09
  5. ↑ Possibility of citizen participation in planning processes / procedures of large infrastructure projects using the example of Stuttgart 21 Scientific Services of the German Bundestag , elaboration from November 5, 2010
  6. ↑ State Office for Building and Transport Brandenburg: Questions and answers on the plan approval and consultation procedure for road and rail traffic. Retrieved February 21, 2020.
  7. ↑ cf. Lower Saxony Ministry for the Environment, Energy and Climate Protection : Discussion of the decommissioning and dismantling of the Unterweser nuclear power plant (KKU) and the construction and operation of a Unterweser storage facility for radioactive waste (LUnA) Agenda, February 23, 2016
  8. ↑ BVerwG, judgment of March 16, 1998 - 4 A 31/97
  9. ↑ Examples: Planning approval decision for the East bypass Regensburg Government of the Upper Palatinate, June 30, 2014; Planning approval decision for the implementation of the Neckar-Alb regional tram, Tübingen regional council, September 28, 2017
  10. ↑ Planning approval decision Rechtslexikon.net, accessed on February 21, 2020
  11. ↑ added with Art. 1 of the Act to Accelerate Approval Procedures (Approval Process Acceleration Act - GenBeschlG) of September 12, 1996, Federal Law Gazette I p. 1354
  12. ↑ Planning approval Rechtslexikon.net, accessed on February 21, 2020
  13. ↑ Planning approval and waiver of planning approval 1997
  14. ↑ Requirements and content of the entitlement to subsequent ordering of protective measures against unforeseeable effects of planned projects according to the Federal Highway Act Scientific Services of the German Bundestag , status of October 13, 2016
  15. ↑ JuraMagazin, Technologiezentrum Dortmund (TZDO): Keyword competition for planning approval
  16. ↑ Law Magazine, Technology Center Dortmund (TZDO): Tag Privileged Fachplanung
  17. ↑ BTDrucks 13/6392, pp 36, 38
  18. ↑ BVerwG, judgment of December 13, 2006 - 4 B 73.06 para. 8th