§ Section 13b BauGB violates European law

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On July 18, 2023, the Federal Administrative Court declared a development plan (outdoor development for housing without environmental assessment) drawn up in the procedure pursuant to Section 13b of the German Building Code (BauGB) to be invalid.

Open spaces outside the settlement area of a municipality may not be overplanned in the accelerated procedure according to § 13b sentence 1 BauGB without an environmental assessment. This has now been decided by the Federal Administrative Court in Leipzig. For more information, see the press release of the Federal Administrative Court "§ 13b BauGB is incompatible with Union law".

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The law firm Philipp-Gerlach andamp; Teßmer had claimed for BUND Baden-Württemberg in the appeal proceedings that § 13b BauGB violates requirements of the European Directive on the Implementation of Strategic Environmental Assessments (SEA Directive). The BVerwG confirmed this in its judgment. According to the law firm, the ruling affects all development plans drawn up and, if applicable, adopted in the procedure pursuant to § 13b BauGB throughout Germany beyond the specific case. These are now all illegal. The defect can be asserted against the municipality in the current procedure and also after its conclusion within a period of one year from public announcement or in a judicial standards control procedure (period: also 1 year from public announcement). Based on the ruling of the BVerwG, any development plan adopted in a procedure conducted in accordance with § 13b BauGB is likely to be found invalid.

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