Principle of separation (building law)
The principle of separation is an optimization requirement under planning law and a key objective under administrative law considerations in the urban land-use planning .
meaning
Like the requirement of consideration , the principle of separation also follows from the overriding requirement of planning conflict management.
It is subject to the requirements of the balancing act and can - if justified by weighty reasons - be overcome by balancing. This means that the separation requirement is no more than an exceptional principle.
Simple statutory regulation
For example, when planning a new commercial and industrial area adjacent to an existing residential development, a municipality has according to § 50 BImSchG to consider the special need for protection of the residential development. In the case of neighboring, mutually incompatible uses, it must take planning measures to cope with this mixed situation - as far as possible - to ensure that harmful environmental impacts within the meaning of § 3 BImSchG cannot be caused, for example through the establishment of protective areas in accordance with Section 9 Paragraph 1 No. 24 BauGB.
An incorrect weighting can lead to a considerable weighing error in the context of an administrative judicial review of standards within the meaning of § 214 Paragraph 1 No. 1 in conjunction with § 2 Paragraph 3 BauBG .
Web links
- Hans-Ulrich Stühler: The urban planning and immission control law separation principle of § 50 BImSchG - overview of case law as of May 2014
- Bernhard Stüer: Urban development law and pollution control law. At the same time, report on Working Group VIII of the 5th German Construction Court Conference in Hamm DVBl. 2014, pp. 908–913
Individual evidence
- ↑ Thomas Würtenberger: Legal optimization requirements or frameworks for administrative action? no year, accessed October 5, 2019
- ↑ Bernhard Stüer: Conflict Management in Land-Use Planning BayVBl. 2000, pp. 257-267
- ↑ cf. BVerwG, decision of July 7, 2004 - 4 BN 16.04
- ↑ BVerwG, judgment of July 5, 1974 - 4 C 50.72 = flat glass judgment
- ↑ BVerwG, decision of January 20, 1992 - 4 B 71.90
- ↑ Wolfgang Klett: Regarding the optimization requirement for mixed situations within the framework of the urban land-use planning September 2012
