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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?

Zoning plans are determined by each municipality for its own area. The municipalities have a wide margin of discretion in issuing a new zoning plan, provided that it does not contravene other laws.

The erection, alteration or change of usage of a building requires a building permit, which is issued by the building authority. For plots in smaller municipalities, this is often the district; in bigger cities, it is mostly the city itself. The building authority is obliged to issue the building permit if the applicant fulfils all requirements stipulated by planning law (in most cases, a zoning plan).

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

A building permit must be applied for. The application must contain various documents (eg, plans of the building), which are determined in ordinances for each federal state. The extent of documents depends on the type of building.

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

A zoning plan can be appealed before the higher administration courts. To challenge a zoning plan, the applicant must prove that there is at least a possibility that the plan contravenes its personal interests. If the applicant can prove this, the higher administrative court will fully assess the legality of the zoning plan (ie, not only the breach of the applicant’s personal rights). If the zoning plan breaches legal obligations, the court will declare it to be null and void.

A building permit can also be challenged before the administrative courts. In contrast to the proceedings above, the administrative court will rescind the building permit only if it is unlawful and the plaintiff’s rights have been violated (ie, only the violation of a personal right will lead to a successful lawsuit). In some federal states, the plaintiff must file an administrative objection to the competent authority before it can challenge the permit before the courts.

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

If the holder of a building permit does not comply with the permit, the competent authority may issue an administrative order in which it prohibits the use of a building or even orders dismantling measures. However, the extent of such an administrative order depends on the individual case and the extent of non-compliance.

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

The protection and development of historic and cultural buildings are governed by the heritage protection laws of each federal state. Generally, any alteration of a protected building requires a specific permit from the competent authority.

Government expropriation

What regime applies to government expropriation of real estate?

The expropriation of real estate is possible only in individual cases where it is required for a public good and the purpose cannot be reasonably achieved by any other means. Such cases are, among other things, determined by the Federal Building Code (eg, if a zoning plan designates a public purpose for a property plot, such as areas for a public road).

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

Before any expropriation, the competent authority must try to buy the property (for a reasonable price). The expropriation is a formal proceeding with hearings and may be challenged before the courts.

Compensation is calculated by a stately committee on the basis of standardised market values (ie, the price that would be achieved in an ordinary transaction at the time that the assessment is made, without considering any extraordinary or personal circumstances).

Environmental issues

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

Environmental certifications depend on the individual case and the kind of real estate. Ordinary buildings require a building permit only. Some commercial operations also require permits under environmental laws, such as the Federal Emission Control Act and the Federal Water Act. Such permits must be applied for at the competent authorities.

What environmental disclosure obligations apply to real estate sales?

Generally, if the seller has knowledge of any environmental damage, it must disclose the issue to the buyer.

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?

The clean-up of property is mainly governed by the Federal Soil Protection Act. Generally, the competent authority can issue clean-up orders against:

  • the owner of the property;
  • the polluter;
  • the legal successor of the polluter; and
  • the holder of actual control over the property (eg, a tenant).

These parties are fully liable with regard to the authority. Whether they have a right of recourse against one another depends on the causation of the other party or contracts with that party (eg, an environmental clause in a sales and purchase agreement).

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

Yes, the Energy Saving Ordinance contains strict legal standards with regard to the energy efficiency of buildings.

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