Roof terraces are modern and popular, but must still comply with design regulations in the development plan, according to the VG Schleswig.
Problem situation - Modern architecture meets building planning law
The construction of roof terraces is becoming increasingly popular. They offer additional open space, increase the quality of living and are considered architecturally modern. But what happens when urban planning design requirements stand in the way of this desire? This was the subject of a Decision of the Schleswig Administrative Court dated May 22, 2025 (Ref.: 8 A 10022/21).
The central question was whether a roof terrace is permitted if the development plan only allows certain roof shapes such as pitched roofs or hipped roofs. The court dismissed the building owners' claim for planning permission - with clear legal considerations regarding the validity and effect of local building regulations, so-called design statutes.
What exactly was it about? Building owners fail with permit application for roof terrace
The plaintiffs wanted to subsequently legalize a partially constructed residential building in St. Peter-Ording. Part of the building application included a terrace on the flat roof of an extension between the main building and the conservatory. This was described by the plaintiffs as a "balcony", but was actually used as a roof area.
However, the development plan, specifically the local building regulations in the version of the 2nd amendment dated 20 May 2023, stipulated a roof shape that required approval: Only pitched, tent, hipped or crippled hipped roofs were permitted for main buildings. Flat roofs were only permitted for garages, carports, conservatories and ancillary facilities - but not for recreation rooms or roof terraces.
The building supervisory authority rejected the permit. A required application for a deviation in accordance with Section 71 of the Schleswig-Holstein State Building Code (LBO SH) was also not submitted. The plaintiffs then took the matter to court, claiming that the development plan was supposedly inoperative, as there were allegedly several buildings with similar flat roof constructions.
Legal assessment of the Administrative Court - Binding nature of design statutes and lack of application for deviation
- Entitlement to planning permission (Section 72 (1) sentence 1 LBO SH)
According to Section 72 (1) sentence 1 LBO SH, planning permission must be granted if the project does not conflict with any public law regulations. The development plan within the meaning of Section 30 (1) BauGB is decisive here.
As the property was located within the scope of a qualified development plan, the project had to fully comply with its stipulations. However, the planned roof terrace contradicted the local building regulations on roof design (Section 84 (1) LBO SH).
- Design statutes - legal nature and binding effect
Local design statutes are part of the development plan as local building regulations or are issued as independent statutes in accordance with Section 84 LBO SH. They serve to safeguard a specific townscape and landscape and stipulate, among other things:
- Permitted roof shapes and pitches
- Materials and colors
- Facade design or ridge direction
In this specific case, section 2.1 of the local building regulations expressly stipulated that roofs must be designed in a certain shape (saddle, hip, etc.). Flat roofs are only permitted for subordinate ancillary facilities. Roof terraces constitute a flat roof under building regulations - even if they are accessible and fitted with a railing.
The VG relied, among other things, on established case law (e.g. BayVGH, decision of 09.08.2021 - 15 CS 21.1636), according to which a roof terrace is typically to be assessed as a flat roof - regardless of its actual use or visual effect.
- No deviation due to lack of application (Section 71 LBO SH)
A formally submitted and justified application for a deviation in accordance with Section 71 (1) LBO SH was not part of the procedure. However, such a deviation would have been the only way to approve the project despite the objection to the roof shape.
The court may neither examine a deviation without an application, nor may it itself enter into a discretionary decision by the building inspectorate. Any claim for self-binding of the administration also fails - because no corresponding administrative procedure was carried out.
- No dysfunctionality of the development plan
The court also rejected the argument that the development plan had become non-functional due to de facto development. It was true that there were other buildings in the plan area with unauthorized roof shapes. However, most of these were to be classified as ancillary facilities or had been erected without approval. Eleven unlawful deviations in over 100 buildings were not sufficient for the court to assume a complete loss of control within the meaning of supreme court case law (BVerwG, judgment of. 24.04.2024 - 4 C 2.23) can be assumed.
Excursus: What does "non-functionality of a provision in the development plan" mean?
The plaintiffs in the proceedings before the VG Schleswig had argued that the local regulations on roof shape had become "functionless" as there were several flat roofs and roof terraces in the planning area. This argument meets high legal standards - and was rightly rejected by the VG Schleswig.
Clarity on the standards of the so-called Functionlessness of development plan provisions was created by the Federal Administrative Court in its cited landmark decision of 24.04.2024 (Ref.: 4 C 2.23):
- Concept and legal meaning
The establishment of a development plan is not automatically ineffective due to the passage of time or de facto disregard. You shall only cease to applyif:
- their realization excluded for the foreseeable future is, and
- this obvious and therefore stands up to any legally and factually sound examination (see para. 22 of the reasons for the decision).
- Standard of obviousness
The loss of the ability to control must be so clear and irreversiblethat reliance on the continued validity of the regulation no longer worthy of protection is. It is sufficient notif an average citizen can recognize structural deviations - the decisive factor is a Professional assessment of actual and legal developments.
- Observation area
The BVerwG confirms that the Area under consideration to a sub-area of the development plan can be restricted - but onlyif the plan explicitly or conceptually includes a independent urban development effect, especially in this sub-area should unfold.
- Transferability to the judgment of the VG Schleswig
The VG Schleswig applied precisely these standards: Although individual buildings in the planning area had flat roofs, the court saw the Overview of over 100 buildings and only eleven deviations identified no complete loss of control. It was also not obviousthat the provision could no longer be implemented. In full compliance with the new supreme court case law of the BVerwG, the assumption of a lack of function was therefore inadmissible in terms of legal doctrine.
Conclusion for practice - roof shape is not a "detail", but an approval requirement
The decision illustrates the relevance of local design statutes when planning building projects. Roof terraces in particular are regularly judged by the courts to be inadmissible flat roofs if the roof design is strictly regulated. Even visual design or subordinate size do not protect against the need for approval.
For builders and architects, this means that anyone wishing to build in an area with active design statutes should check the stipulations (or have them checked) at an early stage and, if necessary, apply for a deviation in the correct form.
Are you planning a roof terrace or a modern home?
We check your building plans for approvability, advise on design statutes and represent you in the approval process or in court. Avoid costly delays and legal risks - talk to your experts at the Administrative law with AVANTCORE RECHTSANWÄLTE in Stuttgart.
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