The subject matter of a deemed building permit pursuant to § 61 para. 3 HBauO is only the construction project that was submitted for approval at the expiry of the statutory processing deadline on the basis of the complete documents required pursuant to § 70 para. 2 sentence 2 HBauO. Subsequent amendments to the building documents cannot alter the subject matter of the deemed building permit.
Commentary
Before applying for confirmation of the deemed approval, care must be taken to ensure that the submitted building documents actually correspond to the intended construction project. This is because the subject matter of a deemed building permit is only the construction project that was submitted for approval at the expiry of the processing deadline on the basis of the complete documents required pursuant to § 71 para. 2 HBauO. Subsequent amendments that are only submitted after the deemed approval has taken effect cannot alter the deemed building permit, since otherwise, in the absence of a formal notice, the subject matter of the approved construction project cannot be determined.
In the case decided by the OVG Hamburg, the project was objectively not approvable due to fire protection deficiencies, so that the deemed building permit was unlawful, even though the building inspection department and the applicant had agreed that correspondingly corrected documents were to be submitted subsequently. The OVG Hamburg declared the deemed building permit unlawful for the reasons stated. An amendment to the construction project would only have been possible within the framework of an expressly applied for amendment permit.
Author: Ines Hartwich – ih@kfr.law
Reference: OVG Hamburg, Decision of 25.7.2016 – 2 Bs 95/16, published in: NordÖR 2016, 474
