1.1 The History of the Building Law
Development of Building Law up to 1945107
Building law was largely codified at the state level in the second half of the 19th century and has since been supplemented and further developed by state and federal legislation. The following account deals with developments in Prussia. The present substantive and organisational division of German building law into building control law and building planning law is based essentially on local law and on the Prussian Code, the General Law for the Prussian States (Allgemeines Landrecht für die preußischen Staaten - prALR) of 1794 (hereinafter ALR). From Section 65 (1) sentence 8 of the ALR, which gave every owner a general right to cover his land with buildings or to alter a building, the principle of the freedom to build was developed under the influence of the emerging liberalism of the 19th century, although this right was restricted by various provisions.108 The courts then interpreted the provision to mean that it served only to ward off dangers.109 The separation of streets and public squares from other land, i.e., the setting of building lines was regulated by Section 66 (1) sentence 8 of the ALR and was considered a police task.110 The right to collaborate in setting building lines was granted local authorities only in 1855.111 The police concept of Section 10 of the ALR provides the basis for the issue of building regulations in the form of police bye-laws. Building regulations settled only what was absolutely necessary to protect public safety and order.112
In reaction to industrial development, the enormous increase in population, and the consequent urban expansion after 1870, the "Act relating to the Laying Out and Alteration of Streets and Public Squares in Cities and Rural Communities" or Building Line Act (Fluchtliniengesetz) was adopted on 2nd July 1875. The act gave local authorities competence with regard to building lines for streets, expropriation of land for public thoroughfares and compensation, as well as for building prohibitions and frontager contributions.113 The Building Line Act introduced autonomous urban development law, for the transfer of building line planning to local authorities divided building regulation substantively and organisationally into two fields: urban development and building police.
Neither the 1794 Prussian Code, nor precautionary police regulations or the consequent building regulations, nor the Act against the Disfigurement of Outstanding Landscape Areas of 2nd June 1902 or the Act against the Disfigurement of Communities and Outstanding Landscape Areas of 15th July 1907 produced a uniform urban development law. The manifest shortcomings in urban development of cities, the precipitous growth of cities clearly demonstrated the need for a two-stage planning system for the municipal and settlement area. The notion of large-scale inter-municipal planning (state spatial planning) was given first legislative expression in an act on the Ruhr Regional Planning Authority passed on 5th May 1920.114
Major advances in Prussian building law were achieved with the Prussian Housing Act of 28th March 1918, which eliminated obvious weaknesses in the Building Line Act and added urban planning and design elements to building control law. The Prussian Housing Act permitted the gradation of building development and the designation of specific land-use areas. But it also failed to meet the demand for comprehensive building law.
During the Weimar Republic (1919 - -1933), the drafting of a Reich Urban Development Act was under discussion, but political events prevented the project from coming to fruition.
During the Third Reich, from 1933 to 1945, codification efforts continued. On the basis of the comprehensive legislative powers vested in the Reich, the Reich Ministry of Labour drafted a German Building Code, which aimed to combine building police law and building law. The war prevented any progress on the draft legislation. Instead, numerous isolated amendments were introduced in sections of building law. Reich legislation between 1933 and 1945 also proved unable to develop a uniform system of urban development law. However, the establishment of the Reich Office for Regional Planning in 1935 offered an opportunity for state spatial planning throughout the country.
Development of Building Law up to 1945115
Massive destruction of cities, towns, and villages during the Second World War and the influx of refugees and expellees confronted local authorities with immense urban development problems. The building law arrangements inherited from the past proved completely inadequate to the task. Since, in the prevailing constitutional situation (the Federal Republic was founded only in 1949) there were neither legislative nor executive institutions at the national level, the states had no choice but to regulate building development matters within their territories themselves. Before reconstruction and reorganisation of the devastated towns and cities could begin, the rubble had to be removed and recycled. In 1948 and 1949, the states, with the exception of Berlin and Bremen, passed "rubble acts" for this purpose, along with reconstruction acts to control building development in towns and cities. The reconstruction acts dealt with urban planning, land reallocation, and building development. The law hitherto in force largely continued to apply in conjunction with reconstruction legislation. After the relevant institutions of the Federal Republic of Germany had been created and had taken up their work, a Federal Ministery for Housing addressed the establishment of country-wide building law bringing together and developing existing state law.116 Given that the unification of building law would be a protracted process, the Building Land Procurement Act was passed to deal with the urgent problems of obtaining land for development.117 The act provided for the expropriation of land for housing, for garden and cultivation purposes, for ancillary structures, and for public amenities.
The opinion handed down by the Federal Constitutional Court118 on 16th June 1954 recognised the competence of the Federation to regulate urban planning, building land reallocation, realignment and replotting, real property transactions, provision of public services, and land valuation. It also recognised the exclusive legislative competence of the Federation for federal planning and concurrent framework legislative powers in outline state spatial planning. State jurisdiction in building control law (building regulations) was recognised.
The different legislative powers provide the basis for the distinction between spatial planning law, urban planning law, and building control law within public building law.119
Spatial Planning and State Spatial Planning
After the Second World War, spatial planning and state spatial planning were materially and formally revised and integrated into the national planning system.
In the 1954 expertise of the Federal Constitutional Court mentioned above, the competence of the Federation for spatial planning was recognised owing to the very nature of the task.120 After considerable preparation,121 the Federal Spatial Planning Act (Raumordnungsgesetz - ROG) was adopted on 8th April 1965. The states established the legal basis for state spatial planning within the framework of the act. An extensively amended version of the act122 came into force on 1st January 1998. The Federal Spatial Planning Act contained four subdivisions. Subdivisions 1, 2, and 4 were directly applicable throughout the country, and subdivision 3, owing to the rules on legislative powers applicable at the time, provided framework rules for spatial planning in the states.123 Deadlines were set for transposing these federal provisions into state law.124 With the introduction of the sustainability principle, the tasks, guidelines, and guiding principles of spatial planning were detailed,125 and the mutual feedback principle spelled out (Sections 1 and 2 of the Federal Spatial Planning Act).126 Furthermore, the concepts, substance, and binding effects of spatial planning (Sections 3 to 9) were defined in detail and the possibility of prohibiting planning and measures contravening spatial planning for an unlimited period was introduced (Section 12), as well as the option of regional preparatory land-use planning (Section 9 (6)). Spatial planning procedures were also reorganised (Section 15) and, in the newly amended Spatial Planning Ordinance (Raumordnungsverordnung - ROV) the projects subject to spatial planning procedures were enumerated.127
Section 3 of the Act to Improve Preventive Flood Control128 broadened the scope for flood prevention under Section 7 (2) sentence 1 no. 2 and Section 3 sentence 2 no. 5 of the Spatial Planning Act.
Urban Development Law
It was not until adoption of the Federal Building Act (Bundesbaugesetz) on 23rd June 1960 that a uniform regulation of urban development law was achieved to replace arrangements encompassing many isolated laws on specific matters. The Federal Building Act created a system of building law that could do justice to the objectives of modern urban development. It conclusively regulated the delimitation of functions between spatial planning, urban planning, and building control law/building regulations, as well as the differentiation between local self-government and direct administration by higher levels of government (Federation and state) in urban planning.129
The Federal Building Act required local authorities to organise and control urban development through urban land-use planning in conformity with federal spatial planning and state spatial planning.130 The Federal Building Act was supplemented by the Plan Notation Ordinance131 and the Land Utilisation Ordinance.132
The Plan Notation Ordinance was introduced to standardise plans in urban land-use planning.
The Land Utilisation Ordinance, which came into force in 1962, and which has since been amended several times to take account of current developments,133 enumerates general and specific categories of land use and sets rules for determining the intensity of built use, building method and design, and permissible lot coverage. This has standardised the urban land-use plans prepared by local authorities.
Once major reconstruction in the war-damaged cities had been achieved under the regime of state reconstruction and rubble acts (1945 to -1960), in particular restoration of the technical infrastructure and the provision of urgently needed housing, the nation-wide regulation of urban land-use planning and urban development began, the model espoused being that of the dispersed and structured city. This phase of urban development from 1960 to 1977 guided by the Federal Building Act produced large-scale housing estates, new development on the urban fringes (outer development), extensive remedial measures ("comprehensive rehabilitation") in Gründerzeit neighbourhoods, and extension of the road transport system.134
Even while the Federal Building Act was being drafted, it was recognised that the tools it provided for rehabilitating dilapidated areas, for developing the edges of agglomerations, and for building new towns were inadequate.135 After a prolonged legislative procedure, the Federal Building Act was supplemented in 1971 by the Urban Development Promotion Act.136
From the mid-1970s, urban development was influenced by shifting societal values and by consequent changes in urban-development models.137 These changes found expression in amendments to the Federal Building Act in 1977 and 1979. Other important factors for urban development were a declining birth rate, slower growth, increasing maintenance costs for infrastructural facilities, higher energy costs, continued restructuring in industry and commerce, and stricter statutory requirements for environmental protection and nature conservation. This required urban planning policy to improve the quality of housing and the residential environment, and to address inner development by better safeguarding industrial and commercial uses in mixed-use areas. To this end, the tools provided by the Federal Building Act were supplemented by comprehensive planning (master/development planning), by greater public involvement, social compensation procedures, requirements to take account of environmental interests, and targeted tools for attaining planning objectives.138
In 1986, the Federal Building Act and the Urban Development Promotion Act were combined into the Federal Building Code,139 thus bringing together the whole of urban planning law . At the same time, urban planning concentrated more strongly on inner development, and greater attention was given to environmental protection and the conservation of historic monuments.140 In order to remedy the housing shortage and in reaction to the withdrawal of the Federation from publicly-assisted housing, the Administrative Measures Act to Supplement the Building Code was passed on 17th May 1990.141 To overcome the tight situation on the housing market prevailing at the time, obstacles to obtaining and designating housing land were to be eliminated and building permission for housing facilitated.
Prior to the reunification of Germany in 1990, the Building Planning and Permission Ordinance142 was passed for the new states entering the Federation, which contained parts of the Building Code, as well as special provisions on comprehensive spatial planning and state spatial planning and new instruments like the project and infrastructure plan.143 This ordinance initiated the step-by-step introduction of West German144 urban planning law in East Germany. This was necessary because the legal and economic basis for urban development planning in the German Democratic Republic differed fundamentally from that in the Federal Republic.145
Since the 3rd October 1990, the Federal Building Code, the Land Utilisation Ordinance, Valuation Ordinance, the Plan Notation Ordinance, and, until 31st December 1997, the Administrative Measures Act to Supplement the Building Code have applied throughout the territory of the Federation. This legislation provided for numerous transitional arrangements for the new states.146 The many amendments and special provisions produced a cleavage between building and planning law in West and East Germany.147 The lacking reserves of building land in agglomerations and investment disincentives in the provision of land for development led in May 1993 to adoption of the Investment Facilitation and Housing Land Act.148
The Federal Building Code was amended in 1996 to improve conditions for the authorisation of renewable energy,149 and projects for the research, development, and use of wind and water power were added to the catalogue of privileged projects under Section 35 (1) no. 6 of the Building Code (since 2004 no. 5). To improve controls under Section 35 (1) nos. 2 to 6 of the Building Code, Section 35 (3) adds provisos.150
The Building and Spatial Planning Act 1998151 unified the Federal Building Code and spatial planning law across West and East Germany, and the provisions of the Administrative Measures Act to Supplement the Building Code were incorporated in the Building Code.
The changes to the Federal Building Code and in spatial planning introduced between 1990 and 1998 were motivated by a national awareness of the need for advancing and adapting building law to meet new objectives in urban planning and to further the reunification of the country.152
The amendments to the Federal Building Code in 2001 and 2004153 were introduced essentially to adjust national law to the requirements of EU law. Thus, the Federal Building Code was amended by the Act of 27 July 2001 (BGBl. I 1950) implementing the EIA Amending Directive,154 the IPPC Directive155 and other EC environmental protection directives.156 These amendments brought environmental impact assessment for certain binding land-use plans within the purview of the Building Code. The Federal Building Code was again comprehensively amended by the European Law Adaptation Act for the Construction Sector157 on 24 June 2004. Amendment was required to transpose Directive 2001/42/EC of the European Parliament and the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment in German urban development and spatial planning law.158 The transposition of this EU Directive was carried out in parallel by the Act on Environmental Impact Assessment (Gesetz über die Umweltweltverträglichkeitsprüfung - UVPG) and other specific acts. The European Law Adaptation Act for the Construction Sector made further amendments and introduced new elements into general and special urban planning legislation.159
With the aim of reducing land take and speeding up important planning projects, especially in safeguarding and creating jobs, meeting housing and infrastructure needs, building and planning law was simplified and accelerated for relevant projects by the Act Facilitating Planning Projects for Inner Urban Development,160 which came into force on 1 January 2007.
107 Cf. for detailed treatment Krautzberger, in: Ernst/Zinkahn/Bielenberg/Krautzberger, BauGB, Einleitung 1 - 45.
108 Cf. Krautzberger, in: Ernst/Zinkahn/Bielenberg/Krautzberger, BauGB, ,Einleitung Rn. 4.
109 Cf. Krautzberger, in: Ernst/Zinkahn/Bielenberg/Krautzberger, BauGB, ,Einleitung Rn. 4.
110 Cf. Krautzberger, in: Ernst/Zinkahn/Bielenberg/Krautzberger, BauGB, ,Einleitung Rn. 4.
111 Cf. Krautzberger, in: Ernst/Zinkahn/Bielenberg/Krautzberger, BauGB, ,Einleitung Rn. 5.
112 Cf. Jaeckel; Die Entwicklung des Baurechts in Berlin seit der Jahrhundertwende, in: Berlin und seine Bauten, Teil II, Rechtsgrundlagen und Stadtentwicklung, 11/12.
113 Cf. Schmidt-Eichstaedt, Städtebaurecht, 80 ff.
114 Cf. Schmidt-Eichstaedt, Städtebaurecht, 87.
115 Note: The development of building law in the German Democratic Republic is not dealt with.
116 Cf. for detailed treatment Krautzberger, in: Ernst/Zinkahn/Bielenberg/Krautzberger, BauGB, Einleitung Rn. 51 ff.
117 Cf. for detailed treatment Krautzberger, in: Ernst/Zinkahn/Bielenberg/Krautzberger, BauGB, Einleitung Rn. 51 ff. Gesetz über die vorläufige Regelung der Bereitstellung von Bauland - Baulandbeschaffungsgesetz - of 3 August 1953 (BGBl. I 720).
118 Cf. BVerfGE 3, 407.
119 Cf. Entwurf eines Baugesetzes, Schriftenreihe des Bundesministers für Wohnungsbau: Bd. 9, 15 ff.
120 Cf. Runkel, in: Ernst/Zinkahn/Bielenberg/Krautzberger, BauGB, ,Einleitung Anhang Rn. 34.
121 For detailed treatment see Runkel in: Ernst/Zinkahn/Bielenberg/Krautzberger, BauGB, Einleitung Anhang Kap II.
122 Article 2 of the Gesetz zur Änderung des Baugesetzbuchs und zur Neuregelung des Rechts der Raumordnung (Bau- und Raumordnungsgesetz 1998 – BauROG – 18th August 1997, BGBl. I 2081).
123 Cf. Runkel, in: Ernst/Zinkahn/Bielenberg/Krautzberger, BauGB, ,Einleitung Anhang Rn. 86.
124 Cf. Section 22 ROG.
125 Cf. Runkel, in: Ernst/Zinkahn/Bielenberg/Krautzberger, BauGB, ,Einleitung Anhang Rn. 90.
126 CCf. Runkel, in: Ernst/Zinkahn/Bielenberg/Krautzberger, BauGB, ,Einleitung Anhang Rn. 93.
127 Cf. Schmidt-Eichstaedt, Städtebaurecht, 88.
128 Gesetz zur Verbesserung des vorbeugenden Hochwasserschutzes of 3 May 2005 (BGBl. I 1224).
129 Cf. Krautzberger, in: Ernst/Zinkahn/Bielenberg/Krautzberger, BauGB, Einleitung 45-72.
130 Cf. Wambsganz, Ludwig; Die Umstellung der bisherigen städtebaulichen Planung auf die Bauleitplanung des Bundesbaugesetzes, in: Göderit (ed.), Das Bundesbaugesetz und andere aktuelle Probleme des Städtebaus und Wohnungswesens, Schriftenreihe der deutschen Akademie für Städtebau und Landesplanung.
131 Verordnung über die Ausarbeitung der Bauleitpläne und sowie über die Darstellung des Planinhalts – Planzeichenverordnung – 9th October 1965 (BGBl. I 121). The Plan Notation Ordinance was last amended by ordinance of 19th December 1990 (BGBl. I 58).
132 Verordnung über die bauliche Nutzung der Grundstücke Baunutzungsverordnung – BauNVO - of 26 June 1962 (BGBl. I 132). The ordinance was amended on several occasions, most recently by Section 2 of the Investment Facilitation and Housing Land Act (Gesetz zur Erleichterung von Investitionen und der Ausweisung und Bereitstellung von Wohnbauland) of 22 April 1993 (BGBl. I 466).
133 On the development of the ordinance, see Fickert/Fieseler, Baunutzungsverordnung, 1 - 16.
134 For a critical discussion of the development of urban development models from 1960 see Bodenschatz, Berlin im Jubiläen-Rausch, in: Stadtbauwelt 48 of 23rd Dec. 1988, 2146 ff and Bodenschatz, Berlin West: Abschied von der steinernen Stadt, in: Beyne, von, Klaus (ed.), Neue Städte aus Ruinen: Deutscher Städtebau der Nachkriegszeit, 75/76.
135 Cf. Krautzberger, in: Ernst/Zinkahn/Bielenberg/Krautzberger, BauGB, ,Einleitung Rn. 100.
136 Gesetz über städtebauliche Sanierungs- und Entwicklungsmaßnahmen in den Gemeinden (Städtebauförderungsgesetz - StBauFG) as promulgated on 18th August 1976 (BGBl. I 2318); it has since been incorporated in amended form in the Building Code.
137 On changes in models see Kaiser, Reinhard; Global 2000; see also Strohm, Holger; Friedlich in die Katastrophe; von Weizsäcker, Richard, Zukunftsaufgaben der Stadtentwicklung, in BAU Handbuch, 91 ff.
138 Cf. Krautzberger, in: Ernst/Zinkahn/Bielenberg/Krautzberger, BauGB, Einleitung 114-139.
139 Baugesetzbuch (BauGB) as promulgated on 23. September.2004 (BGBl. I S. 2414, last amended by Art. 3 of the Act of 5th September 2006 (BGBl I 2098).
140 Cf. Krautzberger, Das Baugesetzbuch 1987, in: Ernst/Zinkahn/Bielenberg/Krautzberger, BauGB, Einleitung 145-160.
141 Gesetz zur Erleichterung des Wohnungsbaus im Planungs- und Baurecht sowie zur Änderung mietrechtlicher Vorschriften of 17 May 1990 (BGBl. I 926) contains the Maßnahmengesetz zum Baugesetzbuch (BauGB-MaßnahmenG) in Article 2. This act was in force until 31 December 1997.
142 Verordnung zur Sicherung einer geordneten städtebaulichen Entwicklung und der Investitionen in den Gemeinden (Bauplanungs- und Zulassungsverordnung – BauZVO) of 20th June 1990 (GBl. der DDR I Nr. 45, 739). It came into force on 31 July 1990.
143 Cf. Krautzberger, Einführung der BauZVO, in: Ernst/Zinkahn/Bielenberg/Krautzberger, BauGB Kommentar, Einleitung 167-171.
144 Cf. Krautzberger, in: Ernst/Zinkahn/Bielenberg/Krautzberger, BauGB, Rn. 164.
145 Cf. Krautzberger, in: Ernst/Zinkahn/Bielenberg/Krautzberger, BauGB, Rn. 165 with further references.
146 Cf. Einigungsvertrag, act of 23 September 1990, BGBl. II 885, Anlage I Kapitel XIV 18.104.22.1682.
147 Cf. Krautzberger, in: Ernst/Zinkahn/Bielenberg/Krautzberger, BauGB, Einleitung 179 - 189.
148 Gesetz zur Erleichterung von Investitionen und der Ausweisung und Bereitstellung von Wohnbauland (Investitionserleichterungs- und Wohnbaulandgesetz) of 22nd April 1993 (BGBl I 466).
149 Gesetz zur Änderung des Baugesetzbuchs vom 30. 7. 1996 (BGBl. I 1189.
150 Cf. Krautzberger, in: Ernst/Zinkahn/Bielenberg/Krautzberger, BauGB, ,Einleitung Rn. 190.
151 Gesetz zur Änderung des Baugesetzbuchs und zur Neuregelung des Rechts der Raumordnung (BauROG) of 18th August 1997 (BGBl. I 2081; renewed promulgation of the act in force from 1st January 1998 on 3rd September 1997 (BGBl. I 2141, 1998 I 137).
152 Cf. Krautzberger, in: Ernst/Zinkahn/Bielenberg/Krautzberger, BauGB, Einleitung 190-211.
153 CCf. Krautzberger, in: Ernst/Zinkahn/Bielenberg/Krautzberger, BauGB, Einleitung 212 - 254.
154 EIA: environmental impact assessment.
155 IPPC: integrated pollution prevention and control.
156 Section 12 of the Gesetz zur Umsetzung der UVP-Änderungsrichtlinie, der IVU-Richtlinie und weiterer EG-Richtlinien zum Umweltschutz of 27th July 2001 (BGBl. I 1950).
157 Gesetz zur Anpassung des Baugesetzbuchs an EU-Richtlinien (Europarechtsanpassungsgesetz Bau – EAG) of 24th June 2004 (BGBl. I 1359).
158 Cf. Krautzberger, in: Ernst/Zinkahn/Bielenberg/Krautzberger, BauGB, Einleitung 255-296.
159 Cf. chapter. II.1.7.
160 Gesetz zur Erleichterung von Planungsvorhaben für die Innenentwicklung der Städte vom 21. Dezember 2006, BGBl. I S. 3316.