Planning law: Outer area designations in development level plans invalid – OVG Hamburg brings clarity

Background: Outer area designations in development level plans

Outer area designations in Hamburg development level plans pursuant to § 10 para. 5 BPVO have not been transferred into current planning law pursuant to § 173 para. 3 sentence 1 BBauGB – even where they are designated for small areas – because there was already no legal basis for the designation of non-building areas for these plans based on the so-called Building Regulation Ordinance (BauRegVO).

Decision of the OVG Hamburg

The Hamburg OVG, having already declared in the past the designations for extensive outer areas within the meaning of § 10 para. 5 BPVO in the transferred development level plans to be obsolete, had until now left open the question of whether at least small-scale outer area designations could claim validity.

New reasoning of the court

This is now answered in the negative on the grounds that the BauRegVO had already not contained a sufficient legal basis. In doing so, the OVG Hamburg simultaneously departs from its case law on the authorization to designate non-building areas under the BauRegVO. In its judgment of 18 December 1975 – Bf II 91/74, the OVG Hamburg still recognized a fundamental designation authorization for non-building areas in § 1 in conjunction with § 3 BauRegVO, because the authorization to designate building areas had indirectly also been associated with the establishment of non-building areas.
The OVG now rejects the legal view held at that time on the grounds that § 3 BauRegVO – contrary to what was assumed at the time – is only an authorization norm for refusing building permits in non-building areas and not at all a legal basis for the designation of building areas.

Significance for owners and administration

The legal treatment has now been conclusively clarified both for the owners of properties located in small-scale outer area designations under the development level plans and for the Hamburg administration. The uncertainties that existed in the past have been eliminated. In the absence of a legally effective designation in the development level plan, the planning law admissibility is governed by § 34 or § 35 BauGB.
By Ines Hartwich
Reference: OVG Hamburg, Judgment of 20.4.2017 – 2 E 7/15.N – juris.

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