Many property owners, investors and local authorities are regularly faced with the question: Why is building outdoors so complicated?
The answer lies in a complex interplay of protection mechanisms under building law, Environmental law and the mandatory planning transparency vis-à-vis the public. An important role is played here in particular by the influence of European legal requirements such as the SEA Directive (strategic environmental assessment). This is exemplified by a recent decision of the VGH Munich (Judgment of 12.05.2025 - 1 N 22.1934).
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What is the "outdoor area" - and why is building in the outdoor area particularly strictly regulated?
Public building law in Germany can be roughly divided into building regulations law and building planning law. Put simply, building regulations law regulates the requirements for the building project and the property. It is largely regulated in the building regulations of the federal states (for example in the LBO Baden-Württemberg). In accordance with Section 1 of the German Building Code (BauGB), building planning law regulates the structural and other use of land in the municipality.
In urban land-use planning under German building law, the outdoor area is everything that not within the scope of a development plan and also not part of the so-called indoor area (i.e. part of the existing built-up area) (§ 35 BauGB). These are mostly Areas used for agriculture, forestry or nature conservation - In short: the open landscape.
Building in outdoor areas is legally restricted for several reasons:
- Protection of the natural environment and the landscape
The outer area should not be overdeveloped - both for ecological reasons and in order not to impair agricultural use. - Avoidance of so-called "splinter settlements"
In the long term, uncontrolled individual development outside built-up areas would lead to increased development costs, environmental pollution and structural problems. - Priority of public interests over private construction wishes
Only certain privileged building projects (e.g. by farmers for their businesses) are permitted in the outdoor area.
A development plan must therefore be drawn up for the creation of building rights in outdoor areas. often in an accelerated procedurebut under strict legal conditions.
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Special challenge when building in outdoor areas: environmental assessment and SEA Directive
Anyone wishing to develop building sites in an outdoor area must regularly submit a Strategic environmental assessment (SEA) regulated by the EU Directive 2001/42/EC ("SEA Directive"). This directive obliges the member states to Preparation of plans and programs - thus also development plans - the Systematically assess environmental impacts and to involve the public.
What does that mean in concrete terms?
- Before any urban land-use planning it must be examined whether the project may have a significant impact on the environment, nature, water, air, climate or the landscape.
- To be decided, no environmental assessment to be carried out, the public must be fully informed, including a justification of this decision.
- A mere notification "No significant environmental impacts are expected" is not legally sufficient. It must be disclosed, Why this is assessed as such - Transparent reasons for the decision are mandatory.
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What happens if these requirements are not met?
A current example shows the consequences: In the above-mentioned decision of May 12, 2025, the Bavarian Administrative Court has just declared a development plan invalid because the municipality had failed to to duly publish the reasons for dispensing with an environmental assessment. The documents were only partially published or not published at all on all mandatory community notice boards - a clear violation of federal and EU law.
As a result, the entire development plan was canceled for unlawful and therefore ineffective explained. For the local authority concerned, this meant a considerable loss of time, renewed planning effort - and legal uncertainty for all investors and landowners.
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What does the ruling mean?
Any landowner, investor or local authority planning a project in an outdoor area or confronted with a new residential development must be aware of Pay the utmost attention to the process:
- Early testingwhether environmental assessments are required
- Transparent documentation the decision-making process
- Careful, local announcement of the planning documents - also in formal terms
AVANTCORE RECHTSANWÄLTE in Stuttgart can provide you with know-how and expertise in the Administrative law throughout the entire process - be it on the side of the Project developerseeking a legally secure planning procedure, or on the part of the Affected partieswho want to defend themselves against possible adverse effects from new construction projects.
Conclusion
Building in outdoor areas is not generally prohibited. However, it is a legally demanding exceptional case. Without proper procedural management, particularly with regard to environmental issues and public participation, every development plan is at risk of failure.
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