VG Aachen, 05.10.2010, Ref.: 3 K 605/10
You do not have to accept the granting of planning permission to your neighbours without objection. You can challenge the planning permission out of court with an objection and in court with an action for annulment. However, it should be noted that these legal remedies do not have a suspensive effect in accordance with Section 212a BauGB. The suspensive effect is a concept of administrative law and means that the administrative act (planning permission) cannot yet be implemented until the appeal (objection/action to contest) has been decided. Accordingly, if the third party also wishes to take action against the planning permission in summary proceedings, they must also submit an application for suspension of enforcement in accordance with Section 80a (4) VwGO.
Particular caution should also be exercised if the neighbour has received a preliminary building decision from the building authority. Even before submitting a building application, the building owner can submit a written application for a preliminary decision (the preliminary building enquiry). The building supervisory authority then issues a so-called preliminary decision in writing (see § 71 BauO NRW). This preliminary building decision has a binding effect, i.e. the building authority is then bound by the content of the questions decided in the preliminary decision when issuing the building permit. This binding effect also applies to the neighbour, meaning that the neighbour must file an objection or action for annulment against the preliminary building permit that violates the standards protecting neighbours as soon as it is issued. If the neighbour fails to do so, a building permit granted at a later date can no longer be challenged with regard to the issues that have already been decided in the preliminary building permit.
[notice]If you have a building law problem, we will be happy to support you in asserting your interests. For a quote, please send us an email to info@mth-partner.de or call us on 0221 - 80187670.[/notice].
The District Court of Aachen had to decide a similar case with regard to a preliminary building permit for a change of use of a former cinema into a clubhouse or integration centre in the above-mentioned ruling.
Facts of the Case:
The plaintiff was the neighbour of a property on which an integration centre was to be built
The defendant had applied for a preliminary building permit for the change of use of a former cinema into a clubhouse and an integration centre. It supplemented this application with information on the planned types of use and operating hours.
The plaintiff was the owner of a property opposite. The city granted its consent to the project of the other party. There was no development plan.
Subsequently, the defendant granted the defendant a development permit for the change of use of the former cinema into a clubhouse and an integration centre. In the favourable decision, the defendant also included the defendant's description of the business and its definition of operating hours. Furthermore, he pointed out to the defendant that noise protection was to be ensured in accordance with the Technical Instructions on Noise Abatement (TA Lärm) and cited the regulations there on the maximum permissible immission values in the mixed area on the one hand and in the general residential area on the other, as well as the specifications that the TA Lärm makes for determining the relevant place of immission.
Plaintiff filed suit against the preliminary decision and was of the opinion that it was too vague
The plaintiff had filed an action against the preliminary decision with the aim of having it cancelled and was of the opinion that the contested preliminary decision was too vague. Neither the type of use intended by the defendant nor the extent of use were specified in the preliminary building decision and the associated application documents in a concrete and comprehensible manner. It was not clear which project was actually the subject of the preliminary building application. In particular, it was unclear whether the preliminary building permit also legalised the use of the building as a venue for music events.
The preliminary decision does not allow for clear and unambiguous definitions of the type and scope of use
In any case, the defendant had not yet submitted a clear utilisation concept to the defendant and had therefore not submitted a verifiable project for approval. Furthermore, it was not clear who was the sponsor and what the purpose of the association mentioned in the application for the preliminary building permit was. Unreasonable noise emissions had emanated from the former cinema on several occasions in the past. These noise emissions were also to be feared from the intended change of use. The defendant, on the other hand, was of the opinion that neighbour-protecting provisions of building law - in particular the principle of consideration - had not been violated.
Ruling of the Administrative Court of Aachen
Aachen Administrative Court followed the neighbour's opinion
The VG Aachen followed the plaintiff's opinion and considered that the preliminary building decision violated the plaintiff's rights as a neighbour of the property. Due to the lack of sufficient specificity of the planned project to use a former cinema as a clubhouse and/or integration centre, the contested preliminary building decision, which affirmed the permissibility under planning law, lacked clear and unambiguous specifications of the type and scope of the planned use, which were necessary to exclude a violation of neighbour-protecting provisions of public building law. In this respect, the preliminary building permit was unlawful.
Source: VG Aachen
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