Outdoor Areas Regulations; Adoption

Local authorities may, by by-law, stipulate that, in built-up areas within the outer zone, projects intended for residential purposes or for small-scale craft and commercial enterprises cannot be objected to on the grounds that they conflict with the designation of land for agriculture or forestry in the land-use plan, or give rise to concerns about the creation or consolidation of scattered settlement (legal basis: Section 35(6) of the BauGB).

Such a by-law first requires that the area to which it applies is not predominantly agricultural in character and that there is a significant amount of residential development there. Furthermore, the lawfulness of an outlying area by-law requires that

• it is compatible with orderly urban development,
• does not establish the admissibility of development projects that are subject to a requirement for an environmental impact assessment, and
• there is no evidence to suggest that the conservation objectives and the purpose of protection of Sites of Community Importance and European Special Areas of Conservation within the meaning of the Federal Nature Conservation Act are being compromised, nor is there any evidence to suggest that, during the planning process, obligations to prevent or limit the effects of major accidents pursuant to Section 50, first sentence, of the Federal Immission Control Act must be observed.

The rationale behind this provision is that, for example, residential buildings not used for agricultural purposes, or small-scale craft or commercial enterprises in rural areas, may in principle only be authorised if their construction does not adversely affect public interests. An adverse effect on public interests within the meaning of the law also exists, for example, if the project contradicts the provisions of the local land-use plan or gives rise to concerns about the creation, consolidation or expansion of scattered settlement. In an out-of-town development by-law, the local authority may stipulate that certain public interests (provisions of the land-use plan, the creation and consolidation – but not the expansion – of scattered settlements) cannot be invoked against a building project. However, other public interests, such as those relating to nature conservation, landscape management or water management, may, depending on the circumstances of the individual case, result in the building project being inadmissible despite the existence of such a by-law.

The by-law may also contain more detailed provisions regarding the admissibility of specific building projects. The by-law is drawn up in accordance with a procedure laid down by law, during which affected landowners may also submit their views.