The three regimes
Permissibility depends on how the plot is classified in planning terms. Three regimes come into consideration.
| Regime | Basis | Measure |
|---|---|---|
| Within a qualified local plan | § 30(1) BauGB | the provisions of the plan |
| In unplanned built-up areas | § 34 BauGB | the character of the immediate surroundings |
| In the outer zone | § 35 BauGB | impermissible in principle, save where privileged |
Classification proceeds in that order. Where a qualified local plan exists, it alone governs. Where none exists, it must be established whether a contiguously built-up locality is present. If not, the outer zone applies.
Classification determines whether a plot is developable and therefore its value. It belongs at the start of any feasibility assessment.
The local plan in three forms
The building code distinguishes three kinds of local plan, and the difference matters. It decides whether the plan closes the assessment.
| Kind of plan | Content | Effect |
|---|---|---|
| The qualified plan | at least provisions on type and extent of development, developable plot areas and local circulation areas | exhaustive |
| The project-related plan | prepared for a specific scheme | likewise exhaustive |
| The simple plan | does not meet the conditions of the qualified one | its provisions apply so far as they reach; § 34 or § 35 governs the rest |
The third row is regularly overlooked. The existence of a local plan does not mean it answers every question. Where it is silent, assessment against the surroundings or under the outer zone regime is added. The article on development within a local plan covers the distinction.
Unplanned built-up areas
Where no qualified plan exists but the plot lies within a contiguously built-up locality, § 34 applies. The legislator proceeds there from a presumption of developability.
The measure is the character of the immediate surroundings, across four features: type of development, extent of development, building form and developable plot area. Assured servicing is added.
One decisive point: the decision is bound, not left to the authority's discretion. Where the project fits on all four features and servicing is assured, consent must be granted.
The article on development in unplanned built-up areas covers the assessment. It also sets out how fitting in is measured.
The outer zone
The outer zone is defined negatively. It is everything lying neither within a qualified plan nor within a contiguously built-up locality. It is therefore the residual category of the three regimes.
It is to be kept free of development in principle. What is permissible is chiefly privileged development, such as agricultural and forestry holdings and certain utility installations. Other development is permissible only where it does not impair public interests.
The article on development in the outer zone covers the system. It also sets out which projects are privileged.
Servicing is always required
One condition runs through all three regimes. Servicing must be assured. It must be legally and factually guaranteed.
This means connection to the public road network and to utilities and drainage. Assured does not mean already built but legally and factually guaranteed by completion.
For cost work this is a heading of its own, frequently missing from early assessments and potentially substantial. It belongs to the costs of site preparation and servicing, which sit outside building costs.
Type and extent of development
Both determine what may be built on a plot, and both are given detail by the land use ordinance. They are set and assessed separately.
| Quantity | Subject | Detail |
|---|---|---|
| Type | the use: residential, commercial, industrial, mixed and others | the land use ordinance defines the area categories and their catalogues of uses |
| Extent | density: site coverage ratio, floor space ratio, building mass ratio, full storeys and heights | the land use ordinance governs how they are determined |
These concepts also matter in unplanned built-up areas. Where the surroundings correspond to one of the categories in the ordinance, permissibility as to type is assessed under that ordinance as though a plan existed. The article on type and extent covers the ratios.
The relationship to building regulations law
Both assessments must be passed, and they are independent. A project may be permissible in planning terms and impermissible under building regulations law.
A project fitting in planning terms may fail on separation distances. A project observing separation distances may be impermissible in planning terms.
A common error is to infer developability from the development of neighbouring plots. In unplanned built-up areas the surroundings are indeed the measure, but only for planning permissibility; building regulations requirements are added. The branch on state building regulations covers the other side.
A reform in progress
A reform of the federal building code is in the legislative process at the date of checking. It aims at faster procedures, more scope for development within existing settlements, and wider powers for municipalities.
It builds on an acceleration provision already in force and does not require the Bundesrat's approval, so it can enter into force comparatively quickly. The date of its entry into force is not yet settled.
Until then the existing law applies, and pending applications are in principle concluded under the old law. The article on the planning law reform covers the position.
How to obtain certainty
In unplanned built-up areas permissibility depends on an assessment of the surroundings that cannot be anticipated with certainty before application. That uncertainty can be reduced in advance.
The most effective instrument against this is the Bauvorbescheid, preliminary ruling: a binding advance determination of individual questions, such as developability in principle, with binding effect for a specified period. It binds the authority and thereby creates planning certainty.
For site decisions it is almost always worthwhile, because it provides clarity before design costs arise. The article on consent procedures covers the instrument.
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.