Building planning law: Designation of new residential areas on the outskirts becomes more difficult Outlook
The development plan for inner-city development in accordance with Section 13a BauGB and the option of drawing up development plans in peripheral locations in accordance with Section 13b BauGB. What both accelerated procedures have in common is that, in particular, an environmental assessment and an environmental report, which are otherwise required in an urban land-use plan procedure, are dispensed with. Accordingly, Section 13b BauGB permits the preparation of development plans for outdoor areas of less than 10,000 m² if they are directly adjacent to built-up areas and allow residential use without the need for an environmental assessment and an environmental report.
The Federal Administrative Court has now ended this possibility in its ruling of 18.07.2023 (Ref. 4 CN 3/22). In the judicial review proceedings, an environmental association had objected to a development plan that had been drawn up in accordance with Section 13b BauGB in an accelerated procedure on the outskirts of a town. In its decision, the Federal Administrative Court deals with the requirements for planning projects that follow from Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programs on the environment (the so-called Strategic Environmental Assessment (SEA) Directive). The aim of the SEA Directive is to ensure a high level of environmental protection to promote sustainable development and to help ensure that environmental considerations are taken into account in the planning and preparation of plans and programs. Accordingly, an environmental assessment must always be carried out if a plan or program is likely to have significant environmental impacts.
This European regulation does not apply directly, but must be transposed into national law by the member states. The Directive gives the Member States a margin of discretion and thus enables regulations at national level that exclude certain types of plans and programs from an environmental assessment in individual cases or in general. Art. 3 para. 3 of the SEA Directive explicitly mentions plans and programs that only determine the use of small areas at local level or only provide for minor changes. The transposition law in question here, the Building Land Mobilization Act of 14 June 2021, was passed by the grand coalition. The aim of the provision, which is limited in terms of its temporal scope, was to enable many municipalities in rural areas to designate new building areas more quickly.
The Federal Administrative Court considers the aforementioned requirements of the SEA Directive to be violated by Section 13b BauGB. The 4th Senate of the Federal Administrative Court first clarifies that all plans and programs that are likely to have a significant environmental impact must be subject to an environmental assessment. If the national legislator specifies a certain type of plan that is to be excluded from an environmental assessment without a case-by-case assessment, it must be ensured that significant environmental impacts are excluded by the plan for every possible case of application.
A determination that is only achieved by means of a standardizing or blanket approach, i.e. in general and as a rule, but at the same time combined with the acceptance of exceptions, is expressly not sufficient. Accordingly, in the case of Section 13b BauGB, which permits the designation of residential areas in previously undeveloped outdoor areas, it cannot be ruled out that significant environmental impacts will occur here. The Federal Administrative Court does not accept the argument put forward by the Higher Administrative Court of Baden-Württemberg as the lower court that the outdoor area included in a plan in accordance with Section 13b BauGB is already polluted by the adjacent buildings. For example, meadow areas adjacent to residential areas could provide a habitat for numerous animal and plant species in their various forms and thus contribute to biodiversity. The same applies to orchards or wooded areas adjacent to residential areas. In the case of such outdoor areas, it cannot be ruled out from the outset that significant environmental impacts will occur as a result of overplanning. This makes the regulation as a whole contrary to EU law.
The SEA Directive therefore prescribes a fact-finding process in all cases to identify areas worthy of protection. Following the ruling of the Federal Administrative Court, it is now clear that this fact-finding in the form of a strategic environmental assessment is also required within the scope of application of Section 13b BauGB, i.e. in comparatively small planning areas for residential construction that are adjacent to built-up areas.
Development plans that have been drawn up using the accelerated procedure in accordance with Section 13b BauGB therefore suffer from a significant procedural deficiency in light of this decision by the Federal Administrative Court. If this defect was also asserted in writing to the planning municipality within the one-year period following the public announcement of the plan in accordance with Section 215 Para. 1 Sentence 1 No. 1 BauGB, it can lead to the invalidity of the development plan in a corresponding judicial review procedure. This is what happened in the case decided here.
Outlook
§ Section 13b BauGB was criticized in the legal literature at an early stage. In particular, the decision not to carry out a preliminary assessment of the individual case, even in the case of outdoor areas, was often criticized. The decision now provides legal certainty in this area.
However, the effects of the decision on development plans that were issued using the accelerated procedure as internal development plans in accordance with Section 13a BauGB are currently still unclear. The Federal Administrative Court has commented on the fact that plans and programs that are likely to have no significant environmental impact can be defined within the scope of the privileged inner development under Section 13a BauGB. In doing so, the Federal Administrative Court refers to a decision of the European Court of Justice from 2013, which, however, does not positively state the compatibility of Section 13a BauGB with Union law, but merely refers to the fact that it is "conceivable" that a particular type of plan that meets the qualitative requirements of Section 13a (1) BauGB is unlikely to have a significant environmental impact (see ECJ, judgment of 18.04.2013, ref. C-463/11).
However, in view of the clear wording of the Federal Administrative Court's decision that any significant environmental impact must be excluded from the outset when determining the privileged plans according to their nature - which is also the basis for Section 13a BauGB - there are justified doubts as to whether Section 13a BauGB will stand up before the Federal Administrative Court. Finally, special cases are also conceivable in the case of inner development plans, for example very large brownfield sites in the inner area, which are not uncommon in rural communities and are used as large home gardens or orchards, for example, where building over them could certainly have an environmental impact. In this respect, the safest way for local authorities is to draw up development plans in the "normal" procedure, even in inner areas - with all the consequences this entails in terms of duration and costs.
The federal legislator has now reacted to the decision of the Federal Administrative Court with effect from 01.01.2024: Development plan procedures under Section 13b BauGB that have already begun and are still ongoing can be completed in accordance with the newly created Section 215a (1) BauGB by applying Section 13a BauGB accordingly. Development plans that have already been drawn up in accordance with Section 13b BauGB can be rectified in accordance with Section 215a (2) BauGB by applying Section 13a BauGB accordingly in the supplementary procedure in accordance with Section 214 (4) BauGB. However, these regulations are by no means the end of the matter; there are well-founded fears in the literature that the new regulation will cause further, considerable consequential problems.
The ruling and the new regulations therefore have no direct impact on the permissibility of individual projects. The economic risk lies primarily with the developers concerned. Further developments should therefore be followed closely.