The allocation of competence
The federation holds legislative competence for land law, from which planning law follows. It therefore governs whether and for what use building may take place at a location.
The states hold competence for building regulations law, that is the requirements placed on the individual building: safety, distances, usability, procedure. The federation governs whether and how a location may be built on.
The structure that shapes all German construction law follows from this. It separates the question of the location from the question of the building.
| Level | Subject | Source |
|---|---|---|
| Federation | whether and for what use | federal building code, land use ordinance |
| States | how the building must be constituted | sixteen state building codes |
| Municipalities | concrete provisions for specific land | local plan, local building provisions |
The third row is frequently overlooked. The municipality gives concrete form to federal law through planning and may additionally adopt local building provisions, which belong to state law.
The four assessments
A project passes through four independent assessments before it is ready to build. Each can fail on its own.
| Assessment | What it establishes |
|---|---|
| The planning assessment | permissibility as to type and extent of use, according to whether a qualified plan exists |
| The building regulations assessment | the requirements on the building: class, separation distances, procedure, technical certifications |
| The sectoral assessment | whether further consents are required |
| The private law assessment | what is owed contractually, independently of the other three |
Sectoral law can be decisive
Alongside planning and building regulations law sits a range of sectoral matters imposing their own requirements and their own procedures. They apply independently of the building consent.
| Matter | Typical trigger |
|---|---|
| Nature conservation | interventions, protected sites, species protection |
| Emissions control | noise, air pollutants, neighbourhood |
| Water law | proximity to watercourses, surface water, flooding |
| Heritage protection | listed buildings, ensembles, setting |
| Highways law | accesses, building restrictions |
| Energy law | requirements for new build and existing stock |
For project management, sectoral law is the commonest cause of unexpected delay, because it brings its own periods and its own participants. Its procedures do not run in parallel with the consent procedure.
It carries particular weight in the outer zone, where public interests decide permissibility directly. The article on development in the outer zone covers the relationship.
A sensible order of assessment
The four assessments are independent but not equally onerous. An order running from the exclusionary to the shapeable saves design costs.
- Establish the planning situation. Built-up area or outer zone determines developability at all.
- Check the local plan, including its written part and any local building provisions.
- Enquire into sectoral law, particularly protected sites, heritage and water law.
- Carry out the building regulations assessment, starting with separation distances, because they determine the developable area.
- Determine the procedure and establish the evidence required.
The first three steps can be completed without significant design effort. The preliminary ruling is the appropriate instrument for this, particularly where permissibility depends on an assessment of the surroundings.
What this means for cost work
Two relationships are regularly overlooked in early cost assessments. Both take effect before the first cost estimate.
| Relationship | Cost effect |
|---|---|
| Permissible density determines the reference quantity | without knowing the permissible floor space, no cost benchmark applies |
| Sectoral requirements generate their own costs | compensatory measures in nature conservation, sound insulation measures and heritage conditions sit outside building costs |
For early cost work this means the sectoral position should be established before a benchmark is applied. A benchmark without that particular is incomplete.
Related articles
This article reflects the position of the rules at the date of checking and serves professional orientation. It does not constitute legal advice and does not replace assessment of the individual case.