Amendment to the Baden-Württemberg state building regulations 2019
With the amendments to the state building regulations, the state is pursuing one outstanding goal in particular: to quickly create sufficient and affordable living space. For future property developers, these innovations are particularly evident in the changes to the approval process and the introduction of digital building applications as well as the facilitation of the use of timber building materials. The creation of a legal basis for charging stations for electric vehicles is also expected to be of central practical relevance. These and other innovations in the LBO, which are presented in the following article, should contribute to acceleration, simplification and sustainability in building law.
1. approval procedure
The new version of Section 51 (5) LBO brings about a far-reaching change in the approval procedure. According to the previous legal situation, the developer of residential buildings in building classes 1-3 as well as their outbuildings and ancillary facilities had the right to choose whether to carry out a faster notification procedure in accordance with Section 51 LBO or a simplified procedure in accordance with Section 52 LBO, or the normal but legally secure building permit procedure in accordance with Section 58 LBO. In comparison, only the implementation of a notification procedure or a simplified building permit procedure is now provided for. This leads to a significant deterioration in the position of the building owner, as only the "normal" building permit procedure is suitable for creating legal certainty and achieving a legalization effect. A corresponding building application will no longer be fully reviewed as before to determine whether the project complies with public law regulations. The building authority now only focuses on whether the requirements of the development plan and the distance zones are being adhered to. In contrast, aspects such as fire protection and accessibility are completely ignored. For buildings up to three storeys high, builders will therefore no longer be able to obtain a normal and legally secure building permit.
2. digital building application
By referring to the text form iSd. § Section 126b BGB, Section 53 (2) LBO paves the way for digital building applications, at least from a legal perspective. Building applications and building documents no longer have to be submitted in writing in paper form, but can also be submitted in electronic form. It is now up to the authorities to put this option into practice technically. The option of requesting documents submitted electronically in written form is only available until the end of 2021 in accordance with Section 77 (5) LBO. The deletion of Section 53 (3) LBO offers further acceleration. Building applications and building documents previously always had to be submitted first to the municipality in whose area the building plot was located. This forwarded the building documents to the building authority. Now, applications and submissions can be submitted directly to the building authority, even if this is not the municipality. While retaining Section 54 (5) LBO, according to which the building authority must decide on the building application within two months, or within one month in the simplified building permit procedure, this change promises to speed up the approval process. On the other hand, according to Section 54 (1) LBO, even a mere lack of formal requirements can lead to a building application being rejected if no additions or rectification of defects are made. However, this strict requirement is relaxed by the provision in Section 54 Paragraph 1 Sentence 3 LBO. According to this provision, even in the case of a building application that cannot be approved based on the previous building documents, the opportunity to make improvements should be granted, suspending all deadlines, if the necessary changes or additions do not require a new building application.
3. charging stations for electric vehicles
In the annex to Section 50 (1), No. 4 a) LBO and in other places, the legal basis has now been created for the construction of charging stations for electric vehicles - without the need for a procedure - and the promotion of electromobility has been given a strong focus. In future, so-called empty conduits for electric cables must be provided for new residential buildings and charging stations for electric vehicles must be provided for non-residential buildings. However, the specific specifications for electric charging stations in terms of number, design and technical requirements are to be reserved for the Garage Ordinance.
4. facilitations for timber building materials
The new Section 26 (3) LBO provides fundamental relief for the construction of buildings with timber building materials by modifying the requirements for fire resistance against the spread of fire. This is intended to provide incentives for the advancing construction of timber buildings for developers and lead to the use of renewable building materials. As a clarification and elimination of the previous legal uncertainty regarding the use of wood in load-bearing or bracing and space-enclosing components, this modification is likely to be welcomed, particularly from the property developer's point of view.
5 Accessibility
The extended regulation on accessibility in apartments in Section 35 (1) LBO does not lead to the desired legal specification of the cases in which an apartment must be completely wheelchair accessible and how many apartments in a building must be barrier-free. Nevertheless, the newly inserted Section 35 (1) sentence 4 LBO clarifies that the obligation to create barrier-free accessibility does not apply to the division of apartments or to certain projects to create additional living space. In addition, Section 35 (1) sentence 1 LBO creates the more flexible possibility that barrier-free apartments can now also be built on several floors on top of each other instead of on one entire floor.
6. distance areas for thermal insulation
The amendment to Section 5 Para. 6 Sentence 2 LBO now allows the construction of wider thermal insulation in existing buildings while adapting the spacing areas. Previously, retrofitted thermal insulation was not taken into account for existing buildings if it did not protrude more than 0.25 meters in front of the outer wall. This value has now been increased to 0.3 meters. In the case of subsequent insulation of roofs, which leads to a greater wall height, the additional distance area required is also added to this dimension.
7. distance areas in urban areas
By approximating the regulations for core areas and inner cities, denser development is now also permitted for urban areas through smaller clearance areas within the meaning of Art. § Section 7 No. 2 LBO is now also possible for urban areas. The legislator hopes that this will make it possible to use inner areas more effectively and create more living space in conurbations.
8. children's playgrounds
According to the amended Section 9 (2) and (3) LBO, the obligation to build a children's playground no longer applies to new buildings with more than two apartments, but only to buildings with more than three apartments. It is also possible to keep a suitable area of land free that can later be designed as a playground, as well as compensation payments for the construction of a nearby municipal playground. However, according to Section 74 (4) LBO, the municipalities can determine a different number of apartments and also impose a construction obligation for existing buildings, so that these regulations, which were initially seen as a relief, can also mean a tightening at municipal law level.
9. advertising structures in village areas
The restricted approval of advertising structures for general and purely residential areas as well as small residential areas in Section 11 (4) has been extended to village areas. Here, too, only advertising installations intended for billboards and advertising installations at the place of performance are permitted.
10 Areas for drying laundry
The obligation to provide communal areas for drying laundry in buildings with more than two apartments, which was previously standardized in § 35 Para. 4 No. 2 LBO, has been deleted by the legislator without replacement. This amendment also promises to make things easier, as specifically designated areas can now be used more flexibly again and space can therefore also be expected to be saved.
11. bicycle parking spaces
Previously, two suitable weather-protected, i.e. covered, bicycle parking spaces were required for each apartment in accordance with Section 35 (4) old version. This rigid regulation was removed and replaced by a general obligation to provide parking spaces for baby carriages and walking aids for communal use, which are either accessible at ground level or easily accessible via ramps or elevators. According to § 37 Para. 2 LBO, the building authority now decides on the number and nature of necessary bicycle parking spaces on a case-by-case basis. However, the authorities, which are particularly concerned about environmental and climate protection, can also exceed the previous minimum number of parking spaces.
12. outpatient assisted living communities
For the first time standardized as special buildings in § 38 para. 2 no. 6 LBO, outpatient assisted living communities for no more than eight people without intensive care needs are subject to the scope of application of special requirements or simplifications of § 38 para. 1 sentence 2 LBO.
13. protection of existing livestock facilities
The newly inserted Section 62 (3) LBO specifies the protection of existing livestock facilities in indoor areas under building law and restricts this considerably. In the event of a continuous interruption in use of more than six years, the building permit now expires for the interrupted use. However, it is still possible to apply for an extension of the deadline by up to two years and, if there is a justified interest in continuing use, an extension of the deadline to a total of ten years.
14 Demolition order for non-use and forfeiture
The amendment also extends the measures that the building authority can take under building supervision law. According to the previous legal situation, a demolition order could only be issued in the event of the construction of buildings in breach of building law in accordance with Section 65 sentence 1 old version. In the event of use contrary to building law, there was the option of prohibiting use in accordance with Section 65 sentence 2 LBO old version. In addition to these measures, which continue to exist, the building authority can now issue an obligation to demolish or remove a building or other facilities if they are not being used and are "in a state of decay" in accordance with the newly inserted Section 65 (2). Given this vague wording of the demolition requirements in the event of significant encroachment, future case law can therefore be eagerly awaited.