Monument protection law: OVG Hamburg confirms admissibility of declaratory action regarding listed building status

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