OVG Hamburg: Deemed approval pursuant to § 61 para. 3 sentence 4 HBauO only with complete building documents

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