Overview of the 2015 amendment to the Baden-Württemberg state building regulations
1. the essential changes
§ Section 5 (4) LBO new version
The wording in Section 5 (4) LBO N.F. has been amended to the effect that the actual ground surface after the construction project has been completed should be decisive for determining the depth of the clearance area. According to the explanatory memorandum, in the case of excavations on the building plot, the existing ground surface after the excavation is to be used. In the case of backfilling, on the other hand, it should be based on whether there is a reasonable reason for the backfilling. If backfilling is only carried out for the purpose of reducing the depth of the clearance area, this should be irrelevant.
§ Section 5 (5) LBO new version
The wording of the regulation has been amended to the effect that in future roof surfaces will be taken into account equally regardless of the degree of inclination. In future, the height of the gable area is to be taken into account at half the ratio of its actual area to the imaginary total area of a rectangular wall with the same maximum dimensions. This may mean that projects that were previously planned with a roof pitch of up to 45° will in future be counted towards the wall height and, as a result, a greater distance surface depth must be maintained.
§ Section 5 (6) LBO new version
When calculating the distance areas to be complied with, the subsequent thermal insulation of an existing building is not taken into account, provided it does not protrude more than 0.25 m in front of the outer wall. This is intended to facilitate the subsequent thermal insulation of buildings.
§ Section 6 (1) LBO new version
The additional limit of 9 m (15 m in total) contained in § 6 Para. 1 Sentence 3 for border development along neighboring borders that is permitted without spacing areas will no longer apply to buildings or parts of buildings that have a wall height of no more than one meter. In future, the scope of application of the limitation will therefore be limited to facilities within the meaning of Section 6 (1) sentence 1 no. 2 LBO (garages, greenhouses and buildings without recreation rooms). According to the explanatory memorandum to the law, this is intended in particular to facilitate the construction of underground garages by enabling greater usability of the properties. The legislator does not generally consider neighboring interests to be impaired in the case of buildings that are constructed underground or in any case do not protrude more than one meter above the ground surface.
§ Section 8 (2) LBO new version
A new obligation to notify the division of land has been introduced. The lower building authority must be notified two weeks in advance of any intended division of land. This does not entail an obligation to obtain approval. Failure to provide the required notification of division constitutes an administrative offense. § Section 75 (1) no. 1 LBO (new version) has been revised accordingly.
§ Section 15 (8) LBO new version
When constructing buildings for keeping animals (stable buildings), suitable facilities for rescuing animals in the event of fire must be provided in future. The legislator considers the installation of fire alarm systems to be particularly necessary here.
§ 35 Para. 1 LBO new version
In future, when constructing a building with more than two apartments (instead of more than four previously), one apartment must be barrier-free. In addition, Section 35 (1) sentence 2 LBO (new version) states that the living rooms and bedrooms, a toilet, a bathroom and the kitchen must be accessible, whereas Section 35 (1) sentence 2 LBO previously only required accessibility. The wording of the amended provision indicates an extension of the building owner's obligations, as usability, in contrast to mere accessibility, requires in particular compliance with the necessary movement areas.
The original draft law presented by the state government on June 3, 2014 did not yet provide for this extension of accessibility from accessibility to usability (see state parliament printed paper 15/5294, p. 8). During the hearing of associations on the draft bill, various parties called for an extension to the usability of barrier-free living space, which the state government initially rejected with reference to the increase in construction costs associated with the necessary compliance with movement areas. The new version of Section 35 (1) LBO adopted by the state parliament is based on an amendment proposed by the Green and SPD parliamentary groups, which refers to DIN 18040-2 (barrier-free construction - dwellings) with the exception of the "R" category (unrestricted wheelchair access) with regard to barrier-free usability. The amendment was approved in the recommended resolution of the State Parliament's Committee for Transport and Infrastructure and the new version of Section 35 (1) LBO was finally passed as Article 1, No. 15, lit. b) by the State Parliament on November 5, 2014. In this respect, it can be assumed that in future, when constructing buildings with more than two apartments, one apartment must be made barrier-free in accordance with DIN 18040-2, unless there is an exception in accordance with Section 35 (1) sentence 3 LBO.
§ Section 35 (4) sentence 1 LBO new version
A central innovation is the obligation to provide two suitable, weather-protected bicycle parking spaces for each apartment. This means that in future, in addition to the obligation to provide proof of necessary car parking spaces, there will also be an obligation to construct necessary bicycle parking spaces. Section 37 (2) sentence 2 LBO new version sets out more detailed requirements for bicycle parking spaces. According to this, the necessary bicycle parking spaces must be protected from the weather, provide effective anti-theft protection and be accessible from the public traffic area at ground level, by ramps or by elevators. According to the explanatory memorandum to the law, it is sufficient to provide an opportunity to attach a bicycle lock to a fixed bicycle stand or similar to enable effective anti-theft protection. Equally suitable, but not necessary, is the installation of an individually lockable bicycle parking space. It is not permitted to install bicycle parking spaces that are only accessible via stairs in the basement, for example. However, it should be harmless if the weather-protected parking space can be reached via individual steps. In this respect, barrier-free access is not necessary. However, it remains to be seen where the line will be drawn here.
The legislator only provides for an exception to the obligation to provide bicycle parking spaces in cases where no bicycle parking spaces are required due to the type, size or location of the apartment. In particular, the legislator is looking at situations in which there is no need for bicycle parking spaces, for example because the residents do not usually have a bicycle (e.g. in a retirement and nursing home) or there are already a large number of bicycle parking spaces in the immediate vicinity. Even in the case of a one-bedroom apartment, the legislator does not see the need for two bicycle parking spaces, but allows one to suffice.
The obligation to provide bicycle parking spaces is extended in § 37 Para. 2 Sentence 1 LBO (new version) to all buildings where bicycles are expected to enter and leave the building. The legislator assumes such bicycle traffic for most types of use of buildings, for example as administrative buildings, restaurants or sports facilities. Accordingly, the necessary number of bicycle parking spaces must be provided. The legislator has refrained from specifying a certain number here - unlike in the case of apartments in Section 35 (4) sentence 1 LBO (new version). Uniform state administrative regulations, which are not yet available, are intended to ensure legal certainty. According to the wording of the regulation in § 37 Para. 2 LBO (new version), the bicycle parking spaces to be provided only have to enable anti-theft protection and be accessible at ground level, via ramps or elevators. The law only expressly requires weather protection when creating bicycle parking spaces for apartments in Section 35 (4) sentence 1 LBO new version. Whether such weather protection is also required for necessary bicycle parking spaces for non-residential buildings is not clear from the wording of the provision or the explanatory memorandum to the law. However, the fact that § 35 Para. 4 Sentence 1 LBO new version, which refers to weather protection, contains a legal definition of the term "necessary bicycle parking space", which is also used in § 37 Para. 2 Sentence 1 LBO new version, could speak in favor of this. However, it is difficult to predict how this question will be assessed by a court dealing with the matter in the event of a dispute.
§ Section 35 (4) sentence 2 LBO new version
In addition to the existing obligation to provide suitable areas for parking baby carriages that are accessible at ground level, areas for parking walking aids (rollators) must now also be provided. This no longer applies depending on the building class (Section 35 (4) LBO refers to buildings in building classes 3 to 5), but in future in every building with more than two apartments.
§ Section 35 (5) LBO new version
According to the new version of the provision, a separate storage room will be required for each apartment in future, instead of in buildings with at least 20 apartments as previously.
§ Section 37 (1) LBO new version
In future, it will be possible to convert up to a quarter of the required car parking spaces into bicycle parking spaces at a ratio of 1:2. However, this option can only be used to create additional bicycle parking spaces and thus save on the number of car parking spaces required. It is not possible to create necessary bicycle parking spaces in this way.
§ Section 51 (2) LBO new version
In future, the notification procedure will only be possible for projects that fully comply with the requirements of the development plan. The possibility of an isolated decision on deviations, exceptions and exemptions from the provisions of the development plan outside of a building permit procedure will no longer be possible in future. The state legislature thus intends to be able to examine more projects in a formal building permit procedure. This is justified in particular by the high level of retrospective control required for projects in the notification procedure, especially if there are deviations from the provisions of the development plan.
2 Transitional provisions and entry into force
In its plenary session on November 5, 2014, the Baden-Württemberg state parliament passed the "Act to amend the State Building Code for Baden-Württemberg". The entry into force is regulated in Art. 3 of the law of 05.11.2014. The provision reads:
"Article 3 Entry into force
This Act shall enter into force on the first day of the fourth month following its promulgation."
Cf. legislative resolution of the state parliament of Baden-Württemberg dated 05.11.2014, Landtags-Drucksache 15/6097
Promulgation took place on 11.11.2014 in the Official Gazette.
See Law Gazette for Baden-Württemberg 2014, p. 501 ff.
The changes brought about by Art. 1 of the law amending the State Building Code for Baden-Württemberg will therefore come into force on 01.03.2015.
2.1 The basic entry into force of the state building regulations in the version dated 11.11.2014 on 01.03.2015 is regulated in Art. 3 of the amending law. The Amendment Act does not contain any transitional provisions. It is therefore questionable whether the LBO in the version valid from 01.03.2015 also applies to matters that have already been initiated before this date, for example because a building permit application was submitted before 01.03.2015 and an administrative procedure was thus initiated.
2.1.1 In principle, the administrative authority must base its decision on an application on the factual and legal situation valid at the time of the decision. This applies mutatis mutandis to the factual and legal situation at the time a remedial or objection notice is issued in the situation of an objection to an obligation (see Kirchberg/Herrmann in Quaas/Zuck, Prozesse in Verwaltungssachen, 2nd edition 2011, Section 2, para. 393 with further references).
Accordingly, the objection authority must generally take into account changes to the legal situation between the submission of the application and the decision on the objection to the obligation. An exception exists if the building owner has been granted a building permit in accordance with the application, against which a third party (neighbor) files an objection. In the opinion of the Federal Administrative Court, when the building permit is issued, the building owner acquires a legal position that is secured to a certain extent, to which he was entitled at the time it was issued and which the third party (neighbor) was obliged to tolerate. This legal position cannot be withdrawn without an express legal basis (see BVerwG, judgment of 19.09.1969, ref.: IV C 18/67, NJW 1970, 263).
Accordingly, a building permit granted before 01.03.2015 cannot be objected to in the objection proceedings initiated by a neighbor on the grounds that it violates the provisions of the state building regulations valid from 01.03.2015.
2.1.2 Section 77 (1) LBO of the State Building Code contains a transitional provision that has not been amended by the law amending the State Building Code for Baden-Württemberg dated 11.11.2014. The provision reads:
"Procedures initiated prior to the entry into force of this Act shall be continued in accordance with the previous procedural provisions. The substantive provisions of this Act shall only be applied in these proceedings if they contain a more favorable regulation for the applicant than the previously applicable law. § Section 76 remains unaffected."
It seems questionable whether the wording in § 77 Para. 1 LBO only refers to the entry into force of the LBO in its original version or also to the entry into force of future amendments, which would mean that § 77 Para. 1 LBO would have to be understood as a general transfer provision.
2.1.2.1 According to the wording of the provision, the substantive provisions of the LBO in the new version only apply to procedures that have already begun but have not yet been completed if they are more favorable to the applicant than the previous provisions. New regulations that burden the building owner would not apply to procedures that are already underway. A restriction only to the entry into force of the LBO in its original version cannot be clearly inferred from the wording.
2.1.2.2 This view is also shared in the literature. According to Hammer/Rickes/Schaible, the transitional provision in § 77 para. 1 LBO is intended to ensure smooth application of the law in the event of amendments to the State Building Code and thereby avoid disadvantages for building owners and planners that would otherwise inevitably occur in the event of a change in the legal situation without transitional provisions (see Hammer/Rickes/Schaible in: Praxis der Kommunalverwaltung, January 2006, explanation of § 77 LBO).
2.1.2.3 § 77 Para. 1 LBO was introduced with the enactment of the new version of the Land Building Code in the version of 08.08.1995 and came into force on 01.01.1996 (Law Gazette for Baden-Württemberg 1995, p. 617 ff.). The law is based on a draft bill by the state government dated 31.01.1995. The explanatory memorandum to Section 77 (1) LBO states:
"Paragraph 1 contains the transitional regulations for procedures already initiated before the new version came into force. As §§ 49 ff. contain significant changes in the area of procedural law and a conversion of initiated procedures to these new regulations would be associated with considerable difficulties for the building law authorities and the building owner, the old procedural regulations are to be applied in this respect. The "most favored nation clause" created in sentence 2 for initiated proceedings applies exclusively with regard to the substantive provisions. The new substantive law is therefore only to be applied insofar as it contains a more favorable regulation for the applicant (building owner) compared to the previous law."
Cf. explanatory memorandum to the draft state building regulations for Baden-Württemberg, Landtagsdrucksache 11/5337, p. 127
The explanatory memorandum suggests that the legislator's main motivation for creating the transitional provision in Section 77 (1) LBO was the significant change to the administrative procedure associated with the new version of the LBO. However, this is a special feature of the law that was promulgated on August 8, 1995 and came into force on January 1, 1996 and does not apply to subsequent changes and amendments to the state building regulations without further ado. This leads to the conclusion that the legislator only intended § 77 Para. 1 LBO to regulate the difficulties arising from the entry into force of the then new version of the LBO in its original version of 08.08.1995 and not a general transitional provision that also applies to future amendments.
2.1.2.4 This approach is also advocated in the literature, according to which Section 77 (1) LBO only applies to the entry into force of the original new version of the State Building Code of 08.08.1995 and does not apply to subsequent amendments to the LBO, in particular not to the amendment of 10.11.2009. In the absence of a transitional provision in the 2010 amendment to the State Building Code (cf. Gesetz zur Änderung der Landesbauordnung für Baden-Württemberg vom 10.11.2009, Gesetzblatt des Landes Baden-Württemberg 2009, p. 615 ff.), which came into force on 01.03.2010, the regulations valid from this date therefore also apply directly to procedures already in progress (see Sauter, Landesbauordnung, 3rd edition, 38th delivery March 2011, Section 77, para. 1).
2.1.2.5 In its ruling of 06.04.2010, the Administrative Court of Baden-Württemberg decided in a comparable case (amendment to the LBO as amended on 08.08.1995) that the provisions of the State Building Code in the version valid from 01.03.2010 must also be applied to building permit procedures that had already begun before 01.03.2010, as the corresponding amending law lacked a transitional provision. The legal situation at the time of the last oral hearing should be taken into account when deciding on an action for an obligation to grant planning permission. Insofar as no building permit has yet been granted, no "more favorable review" is to be carried out, as a secure property rights position within the meaning of Art. 14 para. 1 GG does not exist without such a building permit. This judgment states:
"Decisive for the legal assessment of the project is the Land Building Code of 8.8.1995 (GBI p. 17) in the version of the amendment to the Land Building Code of 10.11.2009 (GBI p. 615ff. - BadWürttBauO 2010) that has been in force since 1.3.2010. According to established case law, the time of the last oral hearing is to be taken as the basis for assessing the factual and legal situation in the case of an action for an obligation by a building owner for the granting of a building permit. Even with regard to Art. 14 I 1 GG, a so-called "favorable review" does not take place, since only a granted building permit gives the building owner a (relatively) secure position under property law (see BVerwGE 61, 128 [134] = NJW 1981, 2426). In the absence of transitional provisions, the amended provisions of the State Building Code shall apply upon their entry into force on March 1, 2010."
2.2 Taking these principles into account, in particular the decision of the VGH Baden-Württemberg of 06.04.2010, it must be assumed that decisions on planning permission procedures that are decided on from 01.03.2015 must be made in accordance with the legal situation valid at that time, irrespective of the second date of receipt of the application.
This view is also shared by the Baden-Württemberg Ministry of Transport and Infrastructure as the highest building law authority. On 18.12.2014, MP Tobias Wald submitted a minor question on Section 77 (1) LBO to the state parliament. The minor interpellation reads as follows:
"1. does it [the state government, ed.] share the view that procedures initiated before the amendments to the LBO adopted by the state parliament on November 5, 2014 came into force should continue to be conducted in accordance with the previous procedural regulations?
Does it continue to share the view that the amendment to the LBO in the form adopted by the state parliament on November 5, 2014 is only binding for procedures initiated after March 1, 2015?"
The Ministry of Transport and Infrastructure responded to this on behalf of the state government on 27.01.2015. The supreme building law authority does not consider the transitional provision in Section 77 (1) LBO to be applicable to amendments to the LBO, as this provision relates exclusively to the entry into force of the original version of the state building regulations on January 1, 1996. In the absence of a transitional provision in the amending law, the new legal situation applies to all decisions made by authorities from 01.03.2015, regardless of when the application was received. The state government believes that the period between promulgation on 11/11/2014 and entry into force on 01/03/2015 ensures that building owners and drafters can adapt to the new legal situation (see Minor Interpellation by MP Tobias Wald and response from the Ministry of Transport and Infrastructure, Landtags-Drucksache 15/63089.