Federal Administrative Court halts expansive municipal pre-emption rights practice

Starting point: Pre-emption rights in social conservation areas

The Federal Administrative Court’s decision was based on the exercise of a municipal pre-emption right pursuant to § 24 para. 1 sentence 1 no. 4 BauGB for a residential property within the scope of a social conservation regulation pursuant to § 172 para. 1 sentence 1 no. 2 BauGB.

The lower courts had assumed that the exercise of a pre-emption right was justified by the public interest. Overriding benefits for the general public would already exist if developments contrary to the conservation objectives were to be feared that the purchaser was likely to intend.

The lower courts did not see any exclusion of the exercise of the pre-emption right pursuant to § 26 no. 4 alt. 2 BauGB, since the future expected use of the property by the purchaser would be contrary to the goals and purposes of the urban development measure (here the conservation statute).

Such a comprehensive and far-reaching justification for the exercise of pre-emption rights and a narrow understanding of the grounds for exclusion was consistent with the rather generous pre-emption rights practice in Berlin, but likely also in other cities and municipalities.

BVerwG: No exercise of pre-emption rights based on future intentions

However, the Federal Administrative Court opposed this in the aforementioned decision and put a stop to the excessive practice of exercising municipal pre-emption rights.

According to the Federal Administrative Court, the actual circumstances at the time of the authority’s decision on the exercise of the pre-emption right are decisive for the exclusion ground pursuant to § 26 no. 4 BauGB. Possible future developments are not relevant. This already follows from the clear wording (present tense). A forward-looking perspective cannot be derived either from the purpose and intent of the conservation statute underlying the pre-emption right, nor from a systematic context.

The decision also sheds some light – at least for pre-emption rights cases under conservation law – on the interpretation and understanding of the exclusion provision § 26 no. 4 BauGB. Although the wording of § 26 no. 4 BauGB (“or”) in principle suggests an (unrestricted) alternative relationship between the variants of the provision, the norm is to be understood in a more differentiated manner according to the Federal Administrative Court. This is because § 26 no. 4 BauGB combines grounds for exclusion that can nonetheless still be distinguished by their direction and point of reference.

The decision was strongly criticized particularly from the municipal side. A corresponding draft legislation to restore the pre-emption right in social conservation areas has already been initiated (BT-Drucks. 20/679). Whether and to what extent the legislature will act here remains to be seen.

Attorney at Law Dr. Henrik Kirchhoff and Attorney at Law Carlotta Zimmermann (née Vohl) discuss the decision in the current article in IBR 2022, 2669.

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