{"id":27751,"date":"2025-06-27T14:18:39","date_gmt":"2025-06-27T12:18:39","guid":{"rendered":"https:\/\/avantcore.de\/?p=27751"},"modified":"2025-10-07T14:35:42","modified_gmt":"2025-10-07T12:35:42","slug":"ovg-bb-intermunicipal-defense-law-development-plan","status":"publish","type":"post","link":"https:\/\/avantcore.de\/en\/ovg-bb-intermunicipal-defense-law-development-plan\/","title":{"rendered":"OVG Berlin-Brandenburg decides against inter-municipal right of defense - action against planning permission for a furniture store bypassing the development plan is dismissed"},"content":{"rendered":"

The OVG Berlin-Brandenburg has made a groundbreaking decision on the right of neighboring communities to defend themselves against large-scale retail projects.<\/strong><\/p>\r\n

<\/p>\r\n

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)<\/a> The decision was a groundbreaking one that affects investors, local communities and neighboring municipalities alike.<\/p>\r\n

What were the proceedings about?<\/strong><\/p>\r\n

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.<\/p>\r\n

The facts at a glance<\/strong><\/p>\r\n

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.<\/p>\r\n

Core of the legal assessment<\/strong><\/p>\r\n

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  1. \r\n

    No right of defense under Section 2 (2) BauGB - end of the case law on setting the course<\/strong><\/h4>\r\n<\/li>\r\n<\/ol>\r\n

    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<\/strong> 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<\/strong>.<\/p>\r\n

    This assessment follows the now well-established case law of the Federal Administrative Court, which has confirmed its earlier \"Jurisdiction to set the course\"<\/strong> has expressly given up.<\/p>\r\n

    What was the switch jurisdiction?<\/strong><\/p>\r\n

    \"IntermunicipalAccording 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.<\/p>\r\n

    Why is this case law outdated?<\/strong><\/p>\r\n

    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<\/strong> - particularly with regard to harmful effects on central supply areas.<\/p>\r\n

    In rulings from 2023 and 2024 (most recently BVerwG, judgment of. 26.09.2024 - 4 C 3.23<\/a>) emphasizes that there is no longer any room for the case law on switch points<\/strong>as 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<\/strong> give. This also makes it clear: Even targeted revocations of development plans no longer establish an independent right of defense for the neighboring municipality.<\/strong><\/p>\r\n

    The OVG Berlin-Brandenburg consistently followed this line.<\/p>\r\n

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    1. \r\n

      No harmful effects within the meaning of Section 34 (3) BauGB<\/strong><\/h4>\r\n<\/li>\r\n<\/ol>\r\n

      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<\/strong> and as a result Not resilient<\/strong> classified:<\/p>\r\n