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.
KFR Kanzlei für Real Estate – Hamburg & München
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