Outdoor area bylaws; enactment

Under certain legal conditions, municipalities can facilitate the construction of residential buildings, in particular, in the outdoor area under building planning law by issuing an outdoor area bylaw.

For built-up areas in the outdoor area, the municipalities can determine by statute that projects that serve residential purposes or smaller craft and commercial enterprises cannot be objected to if they contradict a representation in the land use plan concerning areas for agriculture or forest or if there is a fear of the creation or consolidation of a split settlement (legal basis: Section 35 (6) BauGB).

Such a statute firstly requires that its area of application is not predominantly agricultural and that there is a residential development of some importance there. In addition, the legality of an outdoor area bylaw requires that

• it is compatible with orderly urban development,
• the permissibility of building projects that are subject to an environmental impact assessment is not justified and
• there are no indications that the conservation objectives and protection purpose of sites of community importance and European bird sanctuaries as defined by the Federal Nature Conservation Act will be impaired and there are no indications that the planning must comply with obligations to prevent or limit the effects of major accidents in accordance with Section 50 sentence 1 of the Federal Immission Control Act.

The background to the regulation is that, for example, residential buildings that do not serve an agricultural business or smaller craft or commercial enterprises in outdoor areas can only be approved if their construction does not impair public interests. An impairment of public interests within the meaning of the law also exists, for example, if the project contradicts the representations of the municipal land use plan or gives rise to fears of the creation, consolidation or expansion of a split settlement. In an outdoor area bylaw, the municipality can determine that certain public interests (representations of the land use plan, creation and consolidation, but not expansion of a split settlement) cannot be held against a building project. However, other public interests, such as nature conservation, landscape conservation or water management, may, depending on the circumstances of the individual case, result in the building project being inadmissible despite such bylaws.

The bylaws may also contain more detailed provisions on the admissibility of building projects. The bylaws are drawn up in a legally regulated procedure in which affected property owners can also comment.