Decision of the OVG Hamburg: Declaratory action admissible

The so-called ipsa lege principle expressed in § 6 DSchG is constitutional. An action directed at a declaration that a specific structure is not a listed monument within the meaning of § 4 para. 2 sentence 1 DSchG can be specified to certain monument protection categories within the meaning of § 4 para. 2 sentence 1 DSchG.
The registration proviso expressed in § 6 para. 1 sentence 4 DSchG relates only to the protective obligations of those entitled to dispose pursuant to § 7 DSchG.
The approval proviso under § 9 para. 1 DSchG, by contrast, applies regardless of the registration of the monument in the monuments list.
The listed building status of a structure follows directly from the law since the introduction of the ipsa lege principle in Hamburg monument protection law with effect from 1 May 2013.
If a structure fulfills the statutory requirements of a listed monument, it is automatically subject to monument protection. Since then, it may be questionable for owners of older buildings in particular, with regard to the approval proviso in § 9 DSchG for structural alterations, which applies regardless of the registration of a monument in the monuments list, whether their building is also subject to monument protection.

Demarcation from other decisions

The OVG Hamburg has – deviating from the OVG Berlin (Judgment of 21 April 2016 – OVG 2 B 24.12) – decided that to clarify this question, an action directed at a declaration that a specific structure is not a listed monument is admissible.
The action can moreover extend to all monument protection categories – i.e. to the preservation of a monument

By Ines Hartwich
Reference: Hamburg Higher Administrative Court, 3rd Senate, Judgment of 23 June 2016 – 3 Bf 100/14, published in: NordÖR 2016, 501

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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1. Stays in holiday apartments do not constitute residential use within the meaning of the Land Use Ordinance.

2. An area in which residential use does predominate, but in which stays in holiday apartments are intended to account for a share that also characterizes the area, differs substantially within the meaning of § 11 para. 1 BauNVO from a general residential area.

KFR – Kanzlei für Real Estate explains the decision of the Federal Administrative Court (BVerwG) and its significance for municipal land use planning.

Background of the decision

The subject of the present decision is a development plan designating a special zone for the accommodation of facilities and establishments for permanent residential use and guest accommodation.

In the BVerwG’s view, the present designation of a special zone for “permanent residential use and guest accommodation” could be based on § 11 para. 1 BauNVO.

Demarcation from residential areas

As required by § 11 para. 1 BauNVO, the designated area differs substantially from the building areas under §§ 2 to 10 BauNVO, which the BVerwG then sets out in detail.

The BVerwG first clarifies that a substantial difference from the areas under §§ 2 to 10 BauNVO exists when a designated content is intended that cannot be assigned to any of the area types regulated in §§ 2 ff. BauNVO and therefore cannot appropriately be achieved by a designation based on them.

As has already been decided on multiple occasions, the general purpose of a building area is the decisive criterion for whether the designated special zone differs substantially from a building area type within the meaning of §§ 2 to 10 BauNVO.

The special zone designated here differs substantially first from a pure residential area pursuant to § 3 BauNVO. Pure residential areas serve residential purposes pursuant to § 3 para. 1 BauNVO. The designated special zone, however, also serves guest accommodation. This use does not constitute residential use within the meaning of the Land Use Ordinance.

The concept of residential use within the meaning of § 3 para. 1 BauNVO is characterized by

• a permanently established domesticity, self-determined management of the household and domestic sphere
• as well as the voluntary nature of the stay.

These criteria must be fulfilled by those for whom the accommodation serves as a home.

Decisive for fulfilling the residential use concept are the usage concept and its fundamental implementation.

In the case of guest accommodation, which is to be offered here in holiday apartments, there is no domesticity that is permanently established. This is because, according to the usage concept and its typical implementation, the guests stay in these premises for no more than a few weeks at a time.

No equivalence with general or mixed-use areas

In the BVerwG’s view, the municipality also did not intend to designate a general residential area within the meaning of § 4 BauNVO. The designation of a mixed-use zone would equally fail to achieve the municipal planning objective, and finally the designation of a special zone pursuant to § 10 para. 1 BauNVO serving recreational purposes is precluded. This is because permanent residential use is incompatible with the general purpose of such a special zone.

Commentary from KFR – Kanzlei für Real Estate

The issue of the planning law admissibility of holiday apartment use has long been the subject of case law and legal literature. The views on this matter are varied.

This prompted the legislature to act in 2017. The new provisions in § 12 para. 7 BauGB, § 1 para. 5 BauNVO, § 11 para. 2 BauNVO and § 13a BauNVO were created.

Particularly noteworthy is the new provision in § 11 para. 2 BauNVO, pursuant to which a mixture of guest accommodation or holiday use on the one hand and permanent residential use on the other may also be permitted in designated tourism areas.

It should be noted, however, that these new provisions generally have no effect on existing development plans. This is because – as confirmed again in the present BVerwG decision – the Land Use Ordinance applicable at the time the development plan was adopted applies in principle. Particular attention must be paid to this when interpreting development plans.

Reference: BVerwG, Judgment of 18 October 2017 – 4 CN 6.17 (ZfBR 2018, 158)

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 error-free and valid adoption of development plans often presents a major challenge for the planning municipalities. Not least due to the large number of regulatory subjects in land use planning, the speed and complexity of urban development and the high density of statutory provisions, development plans frequently suffer from substantive and/or formal errors, which can also result in their overall invalidity.

KFR – Kanzlei für Real Estate explains the recent decision of the Hamburg Higher Administrative Court (OVG) and its significance for land use planning.

Background of the decision

This is also illustrated in the recent decision of the Hamburg Higher Administrative Court (judgment of 10 December 2019, Az. 2 E 24/18). The OVG declared invalid the statutory ordinance on a development plan whose provisions exceeded the upper limits established in § 17 para. 1 BauNVO.

According to the OVG’s findings, the upper limits for determining the extent of building use are strictly binding for the land use planning of municipalities. An exceedance is only permissible in narrowly defined exceptional cases where the conditions of § 17 para. 2 sentence 1 BauNVO are met.

The case: Development plan with excessive provisions

According to the OVG’s findings, no such exceptional case existed in the case to be decided, so that the exceedance of the upper limits for the site coverage ratio and floor area ratio was not justified and was inadmissible.

The applicant challenged a development plan by way of an application for judicial review of subordinate legislation, which designated, among other things, an area in which his property was also located as a mixed-use zone.

The following had been stipulated:

• a site coverage ratio of 1.0,
• a floor area of no more than 3,900 sqm and
• a maximum building height of 42.5 m.

The applicant considered the development plan to be defective in its weighing of interests, as it would lead to unreasonable impairments. He therefore applied for the statutory ordinance on the development plan to be declared invalid. With success.

Strict adherence to § 17 para. 1 BauNVO

The strict binding of planning authorities to the upper limits established in § 17 para. 1 BauNVO and the restrictive application of the exception provision of § 17 para. 2 sentence 1 BauNVO had already been the subject of a number of preceding higher court decisions and was now expressly confirmed once again by the OVG Hamburg.

Exceedances of the established upper limits are only permissible in special, narrowly defined exceptional cases and require justification corresponding to the conditions of § 17 para. 2 sentence 1 BauNVO. Pursuant to this provision, the upper limits may be exceeded for urban development reasons if

• the exceedance is offset by circumstances or is offset by measures
• through which it is ensured that the general requirements for healthy living and working conditions are not impaired and
• adverse effects on the environment are avoided.

Other reasons cannot justify any such exceedances.

Consequences for land use planning

A violation of the mandatory upper limits for the extent of building use generally leads to the unlawfulness of the provisions exceeding these limits and can – as in the case decided by the OVG Hamburg – in individual cases also result in the invalidity of the entire development plan.

The planning municipalities must therefore strictly comply with the established limits of § 17 para. 1 BauNVO or carefully examine and justify the existence of an exceptional case pursuant to § 17 para. 2 sentence 1 BauNVO in order to ensure error-free and legally valid land use planning.

The decision of the OVG Hamburg is discussed in more detail in an article by Dr. Henrik Kirchhoff and Carlotta Zimmermann (née Vohl) in the current issue NVwZ 2020, 639.

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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(VGH Munich, Decision of 20 January 2021 – Az.: 12 N 20.1706)
Another interesting decision on the topic of misuse of residential space. KFR – Kanzlei für Real Estate explains the key findings of the Munich Administrative Court of Appeal (VGH) and their significance for owners and municipalities.

Background of the decision

The decision of the VGH Munich clearly demonstrates that misuse prohibition law does not provide municipalities with any influence over the housing market, in particular the development of rental and property prices. The purpose of a misuse prohibition is solely the preservation of the total housing supply. The misuse prohibition is limited to the preservation of existing housing stock and aims at ensuring an adequate supply of housing for the population.

Limits of misuse prohibition law

With reference to decisions of the BVerfG and BVerwG, the VGH makes unmistakably clear that provisions exceeding these objectives constitute an impermissible interference with the owner’s right of disposal and private autonomy and are not covered by the statutory basis for authorization.

Replacement housing: No requirements as to type or rent level

With regard to the replacement housing to be offered for a misuse authorization, neither the type – i.e. rental or owner-occupied housing – nor the respective rent level or even the specific location within the municipal area can therefore be relevant.
The complete case commentary by Dr. Henrik Kirchhoff and Carlotta Zimmermann (née Vohl) can be found in the current issue IMR 2021, 126.

The Bundestag recently passed the Building Land Mobilization Act. It is primarily intended to contribute to the creation of more (affordable) housing and to strengthen the powers and influence of municipalities.
Yesterday, Dr. Henrik Kirchhoff and Carlotta Zimmermann (née Vohl) presented at an online seminar of the BFW Regional Association North on the construction law changes introduced by the Building Land Mobilization Act.

Key topics of the seminar

The focus was on the implications for residential construction practice, in particular through

• the strengthening of municipal pre-emption rights,
• the expansion of exemption possibilities from land use planning provisions and
• the planned prohibition on the conversion of rental apartments into condominiums in areas with a strained housing market.

The Act is intended to accelerate residential construction and give municipalities more room to maneuver in order to activate building land and promote housing preservation.
It strengthens municipal control of construction projects and is intended to facilitate the creation of affordable housing.

Thanks to the BFW Regional Association North

We would like to warmly thank the BFW Regional Association North for their support and the stimulating exchange with the participants.

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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