planning permission
noun · Baugenehmigung
Baugenehmigung is the right word and the wrong expectation: German building consent is a bound decision, to be granted where no public law provision the authority has to examine stands in the way, so a compliant applicant has a claim to it rather than a case to argue. Bauvorbescheid for the advance ruling, and in some cases no consent is issued at all.
Which translation, when
Why
Two layers decide a German building project, and neither is the English one. Federal planning law asks whether the project is admissible where it stands: inside a qualified Bebauungsplan it must comply with the plan, § 30 BauGB, in a built-up area that no qualified plan covers it must fit into what is around it, § 34 BauGB, and in the Außenbereich it normally gets through only if it is privileged, § 35 BauGB. Land building law then supplies the procedure and the building requirements, and it varies, because each of the sixteen Länder has its own Bauordnung. The decisive difference for an English reader lies in the verb. The Landesbauordnungen say the Baugenehmigung is to be granted where no public law provision the authority must examine stands in the way, § 58 Abs. 1 Satz 1 LBO Baden-Württemberg wording it that way and the other Bauordnungen following the same pattern, so the compliant applicant has a claim and, if refused, sues for the permit by Verpflichtungsklage. English planning permission is the opposite kind of decision: s.70(2) of the Town and Country Planning Act 1990 and s.38(6) of the Planning and Compulsory Purchase Act 2004 have the application determined in accordance with the development plan unless material considerations indicate otherwise, which is a planning judgment with the weight left to the decision-maker. Discretion does exist on the German side, but at the margins, in the Ausnahmen and Befreiungen of § 31 BauGB, not in the grant itself.
Typical mistakes
- Baugenehmigung is Land law, so a statement about German building permission that names no Land is unreliable; the sixteen Bauordnungen differ on which procedure applies, what is examined and how long the consent lasts.
- Calling the grant a matter for the authority’s discretion is wrong for the ordinary case: the Landesbauordnungen as a rule make it a bound decision, and the route against a refusal is a claim for the permit itself, not a plea for a more favourable assessment.
- A granted Baugenehmigung does not end the risk, because a neighbour can attack it and his Widerspruch and Anfechtungsklage have no suspensive effect, § 212a Abs. 1 BauGB, so work may start while the challenge runs, at the developer’s risk.
What matters
Conditions precedent tied to planning permission need the German step named: Baugenehmigung for the consent, Bauvorbescheid where the deal turns on one question of principle, and neither where the Land’s Genehmigungsfreistellung means no consent will be issued at all. The clause that waits for a permission nobody will grant leaves the transaction hanging on a document the German procedure does not produce.
What the machine misses
Planning permission is rendered Baugenehmigung by any engine, and the word is right while the expectation behind it is not. English planning permission is a judgment about the development plan and material considerations; the German Baugenehmigung is owed to an applicant whose project complies, § 58 Abs. 1 Satz 1 LBO Baden-Württemberg standing for the Landesbauordnungen generally. So a translated sentence about improving the chances of planning permission reads to a German lawyer as though the applicant had no claim, when he may have one worth enforcing by Verpflichtungsklage.
Examples
| to apply for planning permission | eine Baugenehmigung beantragen |
| planning permission was refused | die Baugenehmigung wurde versagt |
| subject to planning permission | vorbehaltlich der Baugenehmigung |
| outline planning permission | Bauvorbescheid |
More notes on these sections
objection Widerspruch