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

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 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.

(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.

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.

More on legal questions in public construction law – click here.

Will municipal pre-emption rights be exercised more frequently in the future?

“The housing question is the social question of our time”, emphasized former Federal Interior Minister Horst Seehofer. To address the existing housing shortage, municipal pre-emption rights moved further into focus, as their exercise is intended to serve increasingly as an instrument for combating the scarcity of housing and land.

Goal: Strategic land policy by municipalities

Expansions and facilitations for municipal pre-emption rights are intended to support a targeted strategic land policy by municipalities for residential construction. In the past, municipalities have already been exercising pre-emption rights with increasing frequency.
In Hamburg, for example, a total of 110 pre-emption rights were exercised in 2020, representing an increase of 35%. Whether and to what extent municipal pre-emption rights pursuant to §§ 24 ff. BauGB constitute an effective instrument for building land mobilization and housing creation has been critically examined by Attorney at Law Carlotta Zimmermann with regard to the amendments and expansions most recently introduced by the Building Land Mobilization Act in an article in the German Administrative Gazette (DVBl 2023, 443).

Critical assessment of the new provisions

In conclusion, it is to be expected that the statutory expansions of the pre-emption right provisions will likely lead to considerable uncertainties and difficulties in application. Whether this has actually created added value for the mobilization of residential building land is questionable in any case.
The complete article by our Attorney at Law Carlotta Zimmermann can be found in the German Administrative Gazette, issue 8, 2023, p. 443 ff.
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