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Planning and environmental issues

Planning

Which government authorities regulate planning and zoning for real estate development and use in your jurisdiction and what is the extent of their powers?

German planning law is structured hierarchically. Each federal state issues a state-wide development plan roughly defining the basic structures of spatial development. The state development plans are then fixed for the various regions through regional plans. The regional plans are drafted by the regional associations, each of which combines a number of municipalities.

Each municipality drafts a zoning plan for its entire territory which must be in line with the requirements in the state development plan and the applicable regional plan. On the basis of the zoning plan, each municipality then develops binding land use plans for the various parts of its municipal district. The land use plans must be in line with the state development plan, the applicable regional plan and the local zoning plan. Land use plans typically include detailed requirements for the development and use of a plot of land. For example, land use plans determine the type (eg, an industrial zone, a residential area or a special zone) and scope of use (eg, the maximum permissible number of storeys or the maximum permissible height of building). Land use plans are therefore of great importance to the question of how a plot may be developed and used.

The planning autonomy of the municipalities is strong in Germany. In particular, municipalities have the appropriate legal means to prevent any development that is not in line with their planning objectives.

If a plot is located outside the scope of a land use plan, but within a built-up area it may be developed and used in the same way as the neighbouring plots.

What are the eligibility, procedural and documentary requirements to obtain planning permission?

Planning permission is required for most large buildings. If a building is to be used for industrial purposes, approval under immission control regulations may be required instead. The applicant may be the owner of the plot or any other person acting with the owner’s consent, such as a tenant or a person interested in purchasing the plot.

Can planning decisions be appealed? If so, what is the appeal procedure?

If an application for grant of planning permission or an approval under immission control regulations is refused, the applicant may appeal the decision using certain legal remedies. Depending on the federal state where the project is to be realised, the appellant may have to file suit directly before the administrative court or, previously, lodge an appeal with the supervisory authority responsible for the approving authority.

If planning permission or an approval under immission control regulations has been granted, it may be contested by third parties (eg, neighbours). It depends on the federal state concerned whether the opponent must file suit directly before the administrative court or, previously, must lodge an appeal with the supervisory authority responsible for the approving authority. The administrative court or the supervisory authority will then examine whether the third party’s rights are violated by the permission or approval. This may be the case, for example, if the project creates excessive noise emission.

What are the consequences of failure to comply with planning decisions or regulations?

Both planning permission and an approval under immission control regulations can be granted only if the project complies with all regulations and requirements. Once permission or approval for a building has been granted and has become final and unappealable, no authority may demand the demolition or conversion of the building even if it violates regulations or requirements, except perhaps where there is potential for injury to life, limb or health, or where issues of immission control come into play.

If a building is erected or converted without the requisite permission or approval, the use of the building may be prohibited and its demolition ordered unless a subsequent permission or approval can be granted. In addition, an administrative fine may be imposed.

What regime governs the protection and development of historic and cultural buildings?

Each federal state has monuments and historic buildings acts. In addition, municipalities may enact statutes for certain parts of their municipal district in order to preserve the existing building structure. Such statutes may also relate to buildings without cultural or historic importance. 

Government expropriation

What regime applies to government expropriation of real estate?

In Germany, the legal foundations for the expropriation of real estate are not found in a single law, but rather in different federal and state laws. The law to be applied depends on the purpose of the expropriation. For example, the General Railway Act applies where expropriation is deemed necessary for the construction of railways, while the Federal Highways Act applies in the case of expropriation for the construction of federal highways.

What is the required notice period for expropriation and how is compensation calculated?

This depends on the expropriation law concerned.

Environmental issues

What environmental certifications are required for the development of real estate and how are they obtained?

In principle, no further environmental certifications must be obtained apart from planning permission or approval under immission control regulations, as environmental aspects must be taken into account in the approval procedure and are laid down in the form of subsidiary provisions in the permission or approval.

What environmental disclosure obligations apply to real estate sales?

Any environmental legacies on a plot must be communicated to the purchaser before conclusion of the agreement. 

What rules and procedures govern environmental clean-up of property? Which parties are responsible for clean-up and what is the extent of their liability?

This is primarily governed by the Federal Soil Protection Act, according to which the elimination of harmful soil changes and contaminated sites is incumbent not only on the polluter and the owner of the contaminated plot, but also on the holder of actual authority over the plot (eg, the tenant or lessee). The scope of rehabilitation of a plot is limited to what is necessary for the permissible use thereof. This means, for example, that the rehabilitation duties for a residential plot are much more comprehensive and stringent than those for a commercially used plot of land.

Are there any regulations or incentive schemes in place to promote energy efficiency and emissions reductions in buildings?

The energy efficiency requirements on buildings are defined in the Energy Saving Ordinance, which applies to virtually all buildings that are heated or air-conditioned. Moreover, private individuals may obtain government subsidies from KfW, a government-owned development bank which finances the construction and purchase of energy-efficient buildings, as well as the energy efficiency upgrading of legacy buildings, by means of substantial funds.

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