It is not necessary to own the land in order to apply for a building licence. An application for a licence has to be submitted to the municipality, which will pass it on to the supervisory authority for building. Any objection to the authority's decision must be lodged within one month. It is important to realise that third parties, particularly the owners of adjoining properties, can also lodge an objection whenever there is the possibility that their interests might be adversely affected.
Whether a construction project is permissible under public law depends primarily on construction planning law on the one hand and building law on the other.
Construction planning law defines the legal quality of land and the ways in which it may be used. The German Federal Building Code requires each municipality to issue local development plans as far as these are necessary for urban development requirements. Therefore, some areas in Germany are covered by development plans, whereas others are not. This makes it necessary to distinguish between areas for which developments have been drawn up, locations in fully built-up areas and those in outlying areas.
If a plan exists, it will describe the type and extent of building. In this case, the constructor should carefully ensure that its project complies with the provisions of the plan. If it doesn't, it can apply for an exemption from these provisions. The grant of the exemption, which is at the authority's discretion, is usually permitted provided that the urban development is not endangered by the project.
There exists an ordinance on the use of buildings, which provides further regulations such as the type and the dimension of the constructional use. For this purpose, the territory is divided into several zones: housing, industrial, agricultural and so on. An office building cannot be constructed in a purely residential zone. Similarly, the construction of apartments would be impermissible in an industrial zone.
Building law, on the other hand, lays down regulatory standards concerning actual building structures. Each federal state has its own Building Regulations Act, which applies to every building project. The object of these regulations is not town development but building safety. For example, building law serves to prevent accidents by specifying the building material or the spacing between the buildings.
Although the main features of the several building regulations acts are quite similar, the details of the laws differ from state to state. Therefore, a project can infringe a federal building rule of one state, whereas the same project complies with the building rule of another state. So, a constructor operating in several states cannot assume that the building licence they obtained for a project in one state would also be permitted for the same project in another state.
The developer or contractor should also take into consideration that there might be further regulations by public law. As long as no separate permit procedure is necessary (for example, an environmental permit on emission control), the municipality will examine the compatibility of the project with these regulations. This extensive examination by a single planning authority results in a concentration of the procedures, avoiding parallel permit procedures for a single proposal. Therefore the constructor will be safe in assuming that the grant of a building licence confirms the compatibility of the project with the entire public law in that state.
This article was co-authored by Axel Kunze, a partner at Linklaters Oppenhoff & Rädler, Berlin, and by Victoria McKinnell, an associate at Linklaters, London.