On the amendment of the BauGB and the BauNVO by the "Act on the implementation of Directive 2014/52/EU in urban planning law and to strengthen the new coexistence in the city" of 04.05.2017 -

Entry into force

The provisions amended on the basis of the Act of 04.05.2017 entered into force on the day after their promulgation (Art. 5 of the Act of 04.05.2017) in the Federal Law Gazette of 12.05.2017 (Federal Law Gazette I, p. 1057) and thus on 13.05.2017.

The newly created Section 245c BauGB provides for a transitional regulation for application. The previous regulations can continue to be applied to urban land-use planning procedures that were started before 13.05.2017 and in which the early involvement of authorities and other public bodies was initiated before 16.05.2017. These procedures can therefore be completed on the basis of the previous regulations.

1 Section 245c para. 2 BauGB also provides for a transitional regulation for the amended regulations for tourist regions, with 13.05.2017 serving as the cut-off date. Allocations prior to this date must therefore be examined in accordance with the previous regulations. Section 22 BauGB in its new version will apply from 13.05.2017.

The main changes resulting from the amendment

Changes to the urban land-use planning procedure

In various places, the federal legislator has obliged the municipal planning authority to publish information on urban land-use plans on the internet. This concerns - the drafts of the urban land-use plans as well as the environmentally relevant comments from the perspective of the municipality, Section 4a Para. 4 BauGB, - the land-use plan that has come into force, including a summary statement on the manner in which environmental concerns and the results of public and official participation have been taken into account in the plan, Section 6a Para. 2 BauGB, - the development plan that has entered into force, including a summary statement on the manner in which environmental concerns and the results of public and official participation have been taken into account in the plan, Section 10a (2) BauGB,

The regulations also provide for the information to be bundled and made available on the Internet via a portal at state level.

In future, in development plans, areas can be designated in the vicinity of companies subject to immission control licensing that fall under Section 3 (5a) BImSchG, i.e. where hazardous substances are handled in particular, in which special structural or technical measures must be taken to avoid or reduce the consequences of any incidents, Section 9 (1) No. 23 lit. c) BauGB. This is intended to give planning municipalities the opportunity to take individual precautions against major accidents.

The explicit possibility of designating areas for measures to protect against the harmful effects of noise was newly included in Section 9 (1) No. 24 BauGB. This provision was only included in the draft bill during the legislative process. In its statement, the Bundesrat had proposed creating the possibility of specifying certain indoor noise levels (Bundesrat statement of 15.02.2017, BT-Drs. 18/11181, p. 2). The Federal Government rejected this in its counter-statement and instead clarified the possibility for the planning authority to make stipulations for passive noise protection measures in the development plan.

Easements in unplanned inner areas

Of considerable importance is the decision to make it easier to build housing in unplanned inner areas. According to Section 34 (3a) sentence 1 no. 1 BauGB, the requirement of integration can be waived in future in all cases of modification, change of use or renovation of buildings for residential purposes.

Inclusion of outdoor areas in development plans in the accelerated procedure

With the aim of redensification in the accelerated procedure, development plans with a floor area of less than 10,000 m², which enable residential use and are adjacent to built-up areas, can be drawn up. It is envisaged that the plan can adjoin both unplanned inner areas and inner areas designated in the development plan. The possibility of passing resolutions on such development plans is limited until 31.12.2019, whereby the resolution on the statutes for development plan procedures initiated by then must be passed by 31.12.2021.

The creation of such development plans is likely to be highly attractive, as has already been the case to date in accordance with Section 13a BauGB for inner development plans, which can also be created using the accelerated procedure. The special feature here is that previously unaffected outdoor areas can be made accessible for overplanning on a larger scale. The following also applies here:

- the early information and discussion of the public and the authorities and other public interest bodies can be dispensed with, - the affected public can be given the opportunity to comment within a reasonable period of time; alternatively, the interpretation in accordance with Section 3 (2) BauGB can be carried out, - the affected authorities and other public interest bodies can also be given the opportunity to comment within a reasonable period of time or, alternatively, participation in accordance with Section 4 (2) BauGB can be carried out, - the affected authorities and other public interest bodies can be given the opportunity to comment within a reasonable period of time or, alternatively, participation in accordance with Section 4 (3) BauGB can be carried out, - the affected authorities and other public interest bodies can be given the opportunity to comment within a reasonable period of time or, alternatively, participation in accordance with Section 4 (3) BauGB can be carried out. 2 BauGB, - in the simplified procedure, the environmental review pursuant to Section 2 (4) and the environmental report pursuant to Section 2a and the information on which types of environmental information are available are waived, - the development plan can be drawn up, even if it deviates from the representation of the land use plan, before the FNP is amended or supplemented, - interventions that are to be expected as a result of the drawing up of the development plan are deemed to have taken place or to be permissible prior to the planning decision (Section 1a (3) sentence 6 BauGB).

Introduction of an urban area (MU)

Section 6a BauNVO "Urban areas" (MU) implements a new type of building area in the Land Use Ordinance. The intention is to make it easier to build in high-density areas without sacrificing a high level of noise protection. The fact that this is not unproblematic is shown by the fact that the TA-Lärm is to be amended in order to achieve this goal.

For urban areas, the new provision of the Land Use Ordinance stipulates that residential buildings, commercial and office buildings, retail businesses, pubs and restaurants as well as accommodation businesses, other commercial businesses, administrative facilities and facilities for religious, social, health and sporting purposes should be permitted in principle. The possibility of horizontally structuring the building area, as already provided for core areas (MK) in accordance with Section 7 (4) BauNVO, is also possible in an urban area. For such areas, it can be stipulated that residential use should not be permitted in buildings on the first floor on the street side, or only as an exception, while only apartments should be permitted above a floor specified in the development plan. It can also be stipulated that a certain proportion of the permitted floor area or a certain size of floor area specified in the development plan is to be used for commercial purposes.

Overall, the possible stipulations are intended to focus urban development on inner-city development and reduce the use of land outside the city. The intention is to achieve a "mixed use" between residential and work (commercial). In all likelihood, this will have the effect that more noise will have to be allocated to residential areas and more consideration will have to be given to commercial areas.

As a result, it should be noted that the current amendment will make it easier to build homes, which will also need to be used. One issue is likely to be convincing the municipalities to take advantage of the opportunities this offers - while at the same time passing on the resulting costs to the investor via an urban development contract.