HBauO amendment: Important changes come into force on 1 May 2018

The amendments to the HBauO resolved on 23 January 2018 will largely come into force on 1 May 2018. The legislative amendment creates facilitations primarily for timber construction and residential construction and serves to implement European law requirements.

KFR – Kanzlei für Real Estate summarizes the most important changes. The following amendments to the HBauO are particularly noteworthy:

Property development/access (§ 4 HBauO)

Under the previous provision, the requirements for proper property access and thus for the developability of a property included, in addition to other requirements such as adequate road width and connection to the public water supply, that no more than four properties or a row of houses up to 50 m in length could be accessed via a shared access route.

This requirement presented a problem in particular for the development of rear properties and for the development of larger residential quarters. This provision has been repealed by the legislative amendment. Going forward, more than four properties as well as longer rows of houses can therefore be accessed via a shared pathway.

Timber construction (§ 24 HBauO)

Solid timber construction is now permissible up to a maximum height of 22 m instead of the previous 7 m. This legislative amendment is intended to create, among other things, a comparatively cost-effective alternative for building owners for the addition of storeys to existing buildings.

Lifts (§ 37 HBauO)

In future, the obligation to install lifts will also be waived when additional residential space is created in existing buildings by altering the top floor or by adding additional storeys.

This also applies to residential buildings with existing lifts that do not need to be extended higher in the event of an addition of storeys. This legislative amendment creates a further facilitation for building owners for densification in residential construction.

Parking space commutation payment (§ 49 HBauO)

The legislature has also created a further commutation provision for parking spaces in § 49 HBauO. The obligation to provide evidence of necessary parking spaces can now also be fulfilled by payment of a commutation amount when these are to be used as parking spaces for apartments or residential homes and parking spaces for these uses cannot otherwise be provided or can only be provided with unreasonable difficulty.

This legislative amendment serves in particular to create parking spaces for residential use in mixed-use buildings (commercial and residential), because the required evidence of necessary parking spaces for commercial uses otherwise frequently results in all available parking spaces having to be assigned to commercial use, even if there may actually be no need for this.

Barrier-free apartments (§ 52 HBauO)

The legislative amendment also provides for an amendment to the requirements for the creation of the necessary barrier-free apartments as a facilitation for building owners. The barrier-free apartments to be evidenced pursuant to § 52 HBauO can, after the entry into force of the legislative amendment, be evidenced across multiple storeys rather than only on one storey as previously.

Simplified approval procedure (§ 61 HBauO)

Tree felling permits are with the legislative amendment also to be reviewed by the building supervisory authority in the simplified approval procedure. A separate tree felling application to the Lower Nature Conservation Authority is therefore no longer required for a construction project applied for under the simplified approval procedure. The legislative amendment is intended to accelerate the implementation of projects and resolve any conflicts already in the building permit procedure.

Preliminary planning decision (§ 63 HBauO)

The legislative amendment introduces an approval deadline for preliminary planning decision applications. The building supervisory authority must decide on the preliminary planning decision application within 3 months of receipt of the complete documents. However, this legislative amendment does not lead to a noticeable improvement for the building owner. This is because the deadline provision is – as was previously the case in § 62 para. 1 sentence 2 HBauO (old version) for the concentrated building permit procedure – structured without a deemed approval occurring upon expiry of the deadline. Thus, upon expiry of the deadline, only the option of bringing an action for failure to act remains (§ 75 VwGO).

However, this would in any event be admissible after a period of 3 months. The occurrence of a deemed approval in the event of inaction by the building supervisory authority therefore continues to be possible only in the simplified approval procedure pursuant to § 61 para. 3 sentence 3 HBauO.

Deviation (§ 69 HBauO)

A newly created deviation provision is also intended to create a facilitation for residential construction. § 69 para. 1 no. 3 HBauO (new version) now explicitly permits deviations from the provisions of the HBauO also for alterations to the top floor or the construction of additional storeys for the creation of residential space. The newly created deviation option is intended to apply in particular to the waiver of children’s play areas, falling below the clear height requirement for top floor conversions, and the waiver of storage rooms or similar.