Land use plan and development plan; public and official participation

The procedure for drawing up, supplementing, repealing or amending local development plans is governed by the Building Code (BauGB). The relevant statutory provisions are set out, in particular, in Sections 1 to 4b, 6 and 10 of the BauGB.

An integral part of the urban land-use planning procedure is the environmental assessment, which is carried out to address environmental protection concerns. This involves identifying the likely significant environmental impacts and describing and evaluating them in an environmental report. The environmental report forms a separate part of the explanatory memorandum for the urban development plan.

The procedure is usually initiated by a resolution to draw up the plan passed by the competent local authority body, such as the local council. On the basis of a preliminary draft, early public participation usually takes place, during which members of the public must be informed, amongst other things, of the general objectives and purposes of the plan and its anticipated impacts. They must be given the opportunity to express their views and engage in discussion. In addition to early public participation, the local authority carries out early consultation with the authorities and other bodies representing public interests whose remit may be affected by the plan. This also serves to provide the local authority with information on the necessary scope and level of detail required for the environmental assessment. Following the early participation of the public and authorities, the draft land-use plan may be revised if necessary.

Subsequently, the draft urban development plan, together with the explanatory statement and any environmental comments already received which the local authority deems significant, is published on the internet for a period of one month (but for a minimum of 30 days – the ‘February clause’). In addition to publication on the internet as set out in sentence 1, one or more other easily accessible means of access must be provided, such as via publicly accessible reading devices or by making the documents referred to in sentence 1 available for public inspection. The notice must also specify the types of environmental information available. Furthermore, the content of the notice published in the manner customary for the locality and the documents to be made available for inspection in accordance with the first sentence must be posted on the internet and made accessible via a central internet portal of the Land (Section 3(2), fifth sentence, of the BauGB); however, for the plan to be legally valid, the only decisive factor is whether the information was published on the internet; if, on the other hand, publication on a central internet portal of the state was simply omitted, such a procedural error is irrelevant under Section 214(1), first sentence, No. 2(e) of the BauGB.

In addition to the public consultation, the local authority shall seek comments on the draft plan and its explanatory memorandum from the authorities and other bodies representing public interests whose remit may be affected by the planning (Section 4(2), first sentence, of the BauGB). The documents are to be made available, and notification thereof is to be provided, electronically. These specialist bodies must, in principle, submit their comments within one month, although the comment period must not be less than 30 days. The comments are to be submitted electronically.

Following the public consultation and the involvement of the authorities, the local authority examines the suggestions put forward by members of the public and bodies with a public interest. At this stage of the procedure, the local authority weighs up the relevant interests against one another and decides whether to proceed with the proposed land-use plan or, where appropriate, to amend or abandon it in light of the suggestions and concerns raised. The environmental assessment must also be taken into account in this weighing-up process.

Under certain conditions, the local authority may, when amending or supplementing a local development plan, carry out a simplified procedure in accordance with Section 13 of the BauGB. This offers various simplifications in the drafting procedure, which the local authority may optionally make use of (Section 13(2) of the BauGB). Furthermore, the obligation to carry out an environmental impact assessment is waived (Section 13(3), first sentence, of the BauGB). When drawing up, amending or repealing local development plans aimed at inner-city regeneration, Section 13a of the BauGB allows for an accelerated procedure to be carried out under certain conditions. In addition to the procedural simplifications set out in Section 13 of the BauGB, it contains a number of further procedural simplifications (Section 13a(2) of the BauGB). For local development plans with a designated floor area of less than 20,000 square metres, no nature conservation compensation is required (Section 13a(2)(4) of the BauGB).

The provision in Section 13b of the BauGB concerning the application of the fast-track procedure in outlying areas was repealed with effect from 1 January 2024 following the Federal Administrative Court’s ruling (judgement of 18 July 2023 – Ref. 4 CN 3.22) that it was incompatible with EU law, with effect from 1 January 2024. On 1 January 2024, the ‘remedial provision’ of Section 215a of the BauGB was introduced. Under Section 215(3) of the BauGB, the use of procedural simplifications is subject to the corresponding application of Section 13a(2)(1) of the BauGB (waiver of early notification and consultation) in conjunction with Section 13(3), first sentence, of the BauGB (waiver of the environmental assessment) and Section 13a(2)(4) of the BauGB (waiver of nature conservation compensation) will in future require the local authority, on the basis of a preliminary examination of the individual case in accordance with Section 13a(1), second sentence, point 2 of the BauGB, to conclude that the development plan is not likely to have any significant environmental impacts which, pursuant to Section 2(4), fourth sentence, of the BauGB would have to be taken into account in the balancing exercise, or which would have to be compensated for as impairments to the landscape or to the performance and functionality of the natural environment in accordance with Section 1a(3) of the BauGB.

Zoning plan procedures under Section 13b of the BauGB which were formally initiated before 31 January 22022 may be concluded in accordance with Section 215(3) of the BauGB, by way of analogy with Section 13a of the BauGB, provided that the resolution to adopt the development plan pursuant to Section 10(1) of the BauGB is passed by 31 December 2022.

Where development plans that have already been drawn up in accordance with Section 13b of the BauGB are to be brought into force through a supplementary procedure pursuant to Section 214(4) of the BauGB, Section 13a of the BauGB may be applied mutatis mutandis in accordance with Section 215(3) of the BauGB. The resolution to adopt the development plan pursuant to Section 10(1) of the BauGB must be passed by 31 December 2024.

The land-use plan adopted by the local authority and certain development plans require approval before they come into force (see ‘Urban development plans; approval’ under ‘Related topics’). The granting of approval must be publicised in the manner customary for the locality. The land-use plan takes effect upon publicisation of the approval, whilst the development plan comes into force upon publicisation of the approval (Section 10(3), third sentence, of the BauGB). Development plans not subject to approval come into force upon publication of the final resolution adopting the plan. Published urban development plans must be accompanied by a summary statement explaining how environmental considerations and the results of public and official consultation have been taken into account in the urban development plan, and the reasons why the plan was selected following a weighing-up of planning alternatives (Sections 6a(1), 10a(1) of the BauGB). This summary statement is to be published on the internet in addition to the published urban development plan and its explanatory memorandum.

The land-use plan and development plans, as well as the summary statement referred to, are available for inspection at the local council.

In accordance with Section 6a(2) and Section 10a(2) of the BauGB, land-use plans and development plans, together with the explanatory notes and the summary statement, shall also be published on the internet and made available via a central internet portal operated by the state.