Public construction law: Abolition of preclusion provisions – what is changing

In addition to the so-called planning law amendment – which introduced, among other things, the Urban Area as a new building area type into the BauNVO – and the amendments to the TA Noise regulations, there have recently been further changes in the area of public construction law.
The Act on the Adaptation of the Environmental Legal Remedies Act and Other Provisions to European and International Law Requirements of 29 May 2017 came into force with effect from 2 June 2017.
This Act has resulted in the preclusion provision of § 47 para. 2a VwGO being deleted without replacement, i.e. repealed. This has implications for legal protection against development plans by way of so-called judicial review of norms.

What does the abolition of the preclusion provisions mean?

Pursuant to § 47 para. 2a VwGO, an application for judicial review of norms was previously already inadmissible if the person making the application only asserted objections that they had not raised or had raised late in the context of the public consultation in the development plan procedure pursuant to § 3 para. 2 BauGB, but could have raised. Under this provision, persons who had not raised any objections in the development plan procedure against the development plan were regularly excluded from judicial review of norms, i.e. from the possibility of judicial review of the respective challenged development plan.

Purpose of the old provision

§ 47 para. 2a VwGO was newly created at the time by the Act of 21 December 2006 in order on the one hand

• to relieve the administrative courts.
• On the other hand, the provision was intended to serve the goal of bringing the respective interests of those affected to the planning weighing process in a timely manner.

It would contradict the fundamental division of responsibilities between the planning authority and the administrative courts if substantive objections were raised unnecessarily only in the court proceedings.

New legal situation: More legal protection for those affected

With the repeal of this preclusion provision of § 47 para. 2a VwGO, applications for judicial review of norms can now also be made when objections were not raised or were raised late in the procedure. Accordingly, in the course of the adaptation act, the preclusion notice in § 3 para. 2 sentence 2 BauGB has also been repealed.

Implications for practice

Whether the repeal of the preclusion provision of § 47 para. 2a in practice actually leads to a greater number of judicial reviews of norms remains to be seen.

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