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 by Ines Hartwich 

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.

Reference: OVG Hamburg, Decision of 25.7.2016 – 2 Bs 95/16, published in: NordÖR 2016, 474

In addition to the so-called planning law amendment – which introduced, among other things, the Urban Area as a new building area type into the BauNVO – and the amendments to the TA Noise regulations, there have recently been further changes in the area of public construction law.
The Act on the Adaptation of the Environmental Legal Remedies Act and Other Provisions to European and International Law Requirements of 29 May 2017 came into force with effect from 2 June 2017.
This Act has resulted in the preclusion provision of § 47 para. 2a VwGO being deleted without replacement, i.e. repealed. This has implications for legal protection against development plans by way of so-called judicial review of norms.

What does the abolition of the preclusion provisions mean?

Pursuant to § 47 para. 2a VwGO, an application for judicial review of norms was previously already inadmissible if the person making the application only asserted objections that they had not raised or had raised late in the context of the public consultation in the development plan procedure pursuant to § 3 para. 2 BauGB, but could have raised. Under this provision, persons who had not raised any objections in the development plan procedure against the development plan were regularly excluded from judicial review of norms, i.e. from the possibility of judicial review of the respective challenged development plan.

Purpose of the old provision

§ 47 para. 2a VwGO was newly created at the time by the Act of 21 December 2006 in order on the one hand

• to relieve the administrative courts.
• On the other hand, the provision was intended to serve the goal of bringing the respective interests of those affected to the planning weighing process in a timely manner.

It would contradict the fundamental division of responsibilities between the planning authority and the administrative courts if substantive objections were raised unnecessarily only in the court proceedings.

New legal situation: More legal protection for those affected

With the repeal of this preclusion provision of § 47 para. 2a VwGO, applications for judicial review of norms can now also be made when objections were not raised or were raised late in the procedure. Accordingly, in the course of the adaptation act, the preclusion notice in § 3 para. 2 sentence 2 BauGB has also been repealed.

Implications for practice

Whether the repeal of the preclusion provision of § 47 para. 2a in practice actually leads to a greater number of judicial reviews of norms remains to be seen.

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The deemed building approval pursuant to § 61 para. 3 sentence 4 HBauO only takes effect if the documents required for the granting of a building permit are numerically and substantively complete with the building permit authority upon expiry of the statutory processing deadline.

KFR – Kanzlei für Real Estate explains the decision of the OVG Hamburg and its significance for building owners and authorities.

Statutory background

Pursuant to § 61 para. 3 sentence 1 HBauO, a building application in the simplified approval procedure must be decided within a period of two months after receipt of the complete documents. For certain projects, this deadline is reduced to one month under sentence 2 of the provision.

After expiry of the respective deadline, the authority must confirm to the building owner the occurrence of the deemed approval pursuant to § 61 para. 3 sentence 4 HBauO, i.e. at this point in time the approval is deemed to have been granted even if the authority has not fulfilled its review and approval obligation. This applies even if the project may be substantively unlawful.

The case

The subject of the OVG Hamburg’s decision is a stop-work order declared immediately enforceable by the building supervisory authority.

The building owner submitted a building application in the simplified approval procedure in April 2015 for the construction of a residential building. The respondent requested additional documents within one month. At the beginning of June 2015, the building owner submitted a set of new documents. After further documents were exchanged at the building owner’s request, discussions were held and the authority requested further documents in relation to the then-exchanged building plans, the building supervisory authority refused the building permit at the end of August 2016 on the grounds that the construction project was not approvable pursuant to § 34 BauGB.

In October 2016, the building owner applied for confirmation of the occurrence of the deemed approval for the building application submitted at the beginning of June 2015, as the building application would have been submitted with all required documents on that date. In February 2017, the building owner announced the commencement of construction work, whereupon the building supervisory authority ordered the immediate cessation of construction work by telephone and confirmed this by notice of April 2017. It stated as justification that no building permit existed for the project.

The building owner filed a timely objection and applied to the Hamburg Administrative Court for the restoration of the suspensive effect. In the administrative court proceedings, the building owner also submitted, among other things, that the deemed approval effect would occur regardless of the completeness of the building application if the building supervisory authority failed to identify the missing documents to the building owner contrary to § 70 para. 2 sentence 1 HBauO.

Decision of the OVG Hamburg

The Hamburg Administrative Court rejected the application, whereupon the building owner lodged a complaint with the OVG Hamburg.

The OVG Hamburg confirmed the legal view of the Hamburg Administrative Court and dismissed the complaint on the grounds that the occurrence of the deemed approval effect pursuant to § 61 para. 3 sentence 4 HBauO depends on the presence of complete building application documents. The completeness of the documents is a statutory prerequisite that exists independently of the administrative conduct of the authority.

There is no evidence of a legislative intention that the building owner should be able to rely on having a deemed building permit after expiry of the processing deadline – regardless of the completeness of the documents – and this would also contradict the statutory provision in paragraph 3 sentence 1.

In addition, § 61 para. 3 HBauO contains no provision stipulating that a building application is deemed complete upon receipt if the building supervisory authority has not promptly requested the building owner to complete the building application within a reasonable period. Since the documents required under the building documentation ordinance were objectively not complete, the deadline of § 61 para. 3 HBauO did not begin to run and the deemed approval did not occur.

Commentary from KFR – Kanzlei für Real Estate

Previously, the authoritative commentary on the HBauO applicable in Hamburg took the view that the deemed approval would also occur if the building application documents were incomplete and the authority failed to request them contrary to § 70 para. 2 HBauO, i.e. the deemed approval effect – regardless of the substantive legal position – would occur for both decidable and non-decidable applications.

Should it emerge that the project was unlawful, the possibility of withdrawing the deemed building permit would remain (cf. Niere in: Alexejew, Hamburgisches Bauordnungsrecht, as of 1/2016, § 61 para. 46a). This legal view has now been superseded by the unambiguous decision of the OVG Hamburg.

Source: OVG Hamburg, Decision of 6.11.2017 – 2 Bs 232/17

The OVG Lüneburg determined in interim legal protection proceedings against a development plan, with regard to the urban development contract concluded in this context and reviewed incidentally in the court proceedings, that the agreed assumption of maintenance costs for general public green spaces including integrated children’s play areas, a youth area and public street planting as well as compensatory areas, capitalized over 20 years, is likely to be invalid.

Background: Urban development contract and consequential cost provision

In the court’s assessment, the required causality between the project and the measure was lacking in the present case in this respect. The corresponding provision of the consequential costs agreement was invalid.

Requirements for causality

In addition to general remarks on the requirement of causality, the Senate expressly stated that “with regard to the costs of ongoing maintenance of public facilities: the further the maintenance period is extended into the future, the more difficult it becomes to construct a relevant causal connection.”

Admissibility of short-term cost assumptions left open

The Senate left open whether it is permissible, in the initial phase in which a municipality already incurs the full maintenance costs for a development area before it is utilized, to contractually impose these costs (at least) partially on the project developer. However, a time horizon of 20 years was in any case clearly excessive.

Maintenance of public green spaces as an urban development measure?

It was also left open whether the long-term maintenance of public green spaces can in principle still be regarded as an “urban development measure” within the meaning of § 11 para. 1 sentence 2 nos. 1 and 3 BauGB. The transfer of maintenance costs for public facilities would result in the municipality permanently receiving a (new) development area with the same fiscal advantages but without the financial burdens of its “existing development areas.”

Consequences for development plans and contracts

The invalidity of the consequential costs agreement in this respect also gave rise in the present case to a significant weighing deficiency in the development plan at issue in the proceedings, so that the latter was ultimately provisionally suspended.

Our conclusion

The decision once again demonstrates that strict requirements are to be placed on the causality requirement and that this represents a considerable risk for the validity of consequential cost agreements and not least also for the validity of the corresponding development plan.
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