The OVG Berlin-Brandenburg has made a groundbreaking decision on the right of neighboring communities to defend themselves against large-scale retail projects.
Urban planning compatibility, inter-municipal cooperation and the right of neighboring municipalities to defend themselves against large-scale retail projects: The OVG Berlin-Brandenburg has ruled with the Decision of June 19, 2025 (Ref. OVG 2 S 45/24) The decision was a groundbreaking one that affects investors, local communities and neighboring municipalities alike.
What were the proceedings about?
A neighboring municipality in Brandenburg sought interim legal protection against the planning permission for the conversion and extension of a furniture store in a neighboring municipality. In particular, it complained of a violation of the inter-municipal coordination requirement (Section 2 (2) BauGB) and a threat to its central service area due to harmful urban development effects within the meaning of Section 34 (3) BauGB.
The facts at a glance
The defendant - operator of a furniture store - had received approval for conversion and extension measures from the responsible building supervisory authority. The plaintiff neighboring municipality saw this as an unlawful circumvention of urban planning coordination processes, in particular by revoking an older development plan of the local municipality, against which the right of defense was to be asserted. In addition, it feared a shift in sales that could lead to a functional weakening of its central service area.
Core of the legal assessment
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No right of defense under Section 2 (2) BauGB - end of the case law on setting the course
The OVG clarified that the right of defense of a neighboring municipality in the unplanned inner area exclusively in accordance with Section 34 (3) BauGB is directed. Recourse to the general inter-municipal coordination requirement of Section 2 (2) BauGB - even in the case of supposedly "active influence" through the revocation of plans - would be no longer permitted.
This assessment follows the now well-established case law of the Federal Administrative Court, which has confirmed its earlier "Jurisdiction to set the course" has expressly given up.
What was the switch jurisdiction?
According to this earlier line of the BVerwG, neighboring municipalities could take action against plans or approvals of a neighboring municipality if the latter "set the course" in an inadmissible manner in order to strengthen its own location at the expense of others - e.g. through deliberately disadvantageous retail settlements. Protection was provided via an analogous application of Section 2 (2) BauGB if the Building Code did not contain any explicit provisions.
Why is this case law outdated?
With the introduction of Section 34 (3) BauGB by the European Law Adaptation Act on Construction, the legislator has deliberately and conclusively regulated this, when large-scale retail is permitted in unplanned inner areas and when it is not - particularly with regard to harmful effects on central supply areas.
In rulings from 2023 and 2024 (most recently BVerwG, judgment of. 26.09.2024 - 4 C 3.23) emphasizes that there is no longer any room for the case law on switch pointsas it has been completely replaced by Section 34 (3) BauGB. An analogous application of Section 2 (2) BauGB is neither necessary nor appropriate to the system, as it neither an unintended loophole nor a lack of protection give. This also makes it clear: Even targeted revocations of development plans no longer establish an independent right of defense for the neighboring municipality.
The OVG Berlin-Brandenburg consistently followed this line.
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No harmful effects within the meaning of Section 34 (3) BauGB
The court also denied a violation of Section 34 (3) BauGB - the only relevant standard for municipal neighbor protection today. The impact analysis submitted by the plaintiff municipality was deemed Methodologically inconclusive and as a result Not resilient classified:
- The scope of the investigation had been extended compared to previous reports, without any comprehensible justification.
- The claimed attraction of the new furniture store location was exaggerated by unrealistic assumptions about the shift in purchasing power.
- The so-called spill-over effect of 10 % additional turnover was not plausible and, in the opinion of the court, was "made up out of thin air".
- A relevant impairment of the applicant's central service area could therefore be identified. Do not forecast.
The court also emphasized that even a certain decline in sales does not constitute a harmful effect within the meaning of the law as long as No functional hazard of the affected area is proven.
What does the decision mean for municipalities and investors?
The decision strengthens the Planning sovereignty of the local municipalities and emphasizes the role of Section 34 (3) BauGB as a Sole protection regulation for neighboring communities in unplanned inner areas.
- The following applies to neighboring municipalities: A successful defense requires reliable evidence of concrete harmful effects. Simply invoking the inter-municipal coordination requirement is no longer sufficient.
- For project developers: Legal certainty is increasing - well-founded compatibility analyses and transparent coordination with the local municipality form the best basis for legally secure projects.
- For local communities: The revocation of outdated or erroneous development plans is permissible - even if this creates space for new retail projects.
Legally secure planning - well-founded defense - strategic attack
AVANTCORE RECHTSANWÄLTE in Stuttgart advises municipalities, investors and retailers on the legally compliant planning and approval of large-scale retail projectsespecially in an intermunicipal context. We Check urban development compatibility reports, design legally compliant approval procedures - and represent your interests vis-à-vis authorities and neighboring municipalities with the necessary depth and strategic vision.
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