Planning and permitting procedures do not always have to delay construction projects. The law provides several options for expediting the process. To take advantage of them, building owners and project planners may need to take action as early as the project planning phase. Here is an overview of the various options for expediting the process available to project sponsors:
Determine whether a standard approval process is required at all
What is often overlooked: Not all construction projects require a permit. Project developers should therefore first check whether the planned construction project qualifies for an exemption—if necessary, by tailoring the plans accordingly. In fact, to create housing, several federal states have exempted certain projects from the requirement to obtain a building permit. However, these are primarily measures involving existing buildings. This includes certain renovation projects—in particular, the conversion of attic spaces for residential purposes—as well as changes in use intended to create housing. The relevant regulations can be found in:
- 57 BayBO (Bavaria)
- 62 HBauO (Hamburg)
- Section 50(2)(2) of the LBO BW (Baden-Württemberg)
- § 64, 64a HBO (Hesse)
- Section 63 of the Building Code of North Rhine-Westphalia (NRW)
In some cases, project developers can avoid a lengthy permitting process this way. In particular, it is worth considering whether a project can be implemented within existing structures without requiring a permit and whether a new construction project—which would require a permit—can be avoided. However, even projects that do not require a permit must comply with public law requirements. The responsibility for the legal review simply shifts more heavily to the project developer.
Submit all required documents to trigger deemed approval, if applicable
If the project developer has submitted a complete application for a building permit, the building permit is considered automatically granted in some federal states if the authority has not made a decision on the application within a specified time limit. Project developers should therefore check early on whether a deemed approval provision applies to their project and then submit the application documents in a complete and verifiable manner. This is a prerequisite for deemed approval.
For example, Baden-Württemberg has introduced a presumption of approval for the simplified building permit procedure (Section 58(1a) of the LBO BW), as has North Rhine-Westphalia (Section 74(2) and (3) of the BauO NRW).
Consider standardization right from the project planning stage and take advantage of type approval
Project developers who are carrying out multiple comparable projects, developing standardized residential buildings, or using modular or serial construction methods should consider applying for a type approval. For structures intended to be erected in multiple locations using the same design or a specific system, issues that can be generalized need to be reviewed and approved only once. In the respective building permit process for each specific structure, only site-specific issues need to be clarified. These include, above all, the project’s admissibility under building planning law pursuant to Sections 29 et seq. of the German Building Code (BauGB), setback regulations, site-specific requirements for the property (such as access, utility connections, and building coverage), as well as local building codes.
To benefit from type approval, the construction concept, planning, and procurement should be structured in such a way that as many location-independent elements as possible are standardized. The more a project is customized after the fact, the less significant the acceleration effect may be.
Type approval is currently possible in most federal states, including Baden-Württemberg (Section 68 LBO BW), Bavaria (Art. 73a BayBO), Hamburg (Section 72a HBauO), Hesse (Section 77a HBO), North Rhine-Westphalia (Section 66 BauO NRW), Lower Saxony (Section 73a NBauO), and Schleswig-Holstein (Section 72a LBO SH).
In addition: An amendment to the BauGB is intended to speed up urban land-use planning
An amendment to the Building Code (Act on the Modernization of Urban Planning and Regional Development Law) is intended to simplify, digitize, and expedite urban land-use planning. In addition, housing construction in certain areas is to be declared a matter of overriding public interest. Housing construction projects, in particular, could benefit from this. The law is scheduled to take effect primarily on January 1, 2027.
1. Housing construction should be given greater weight in the assessment
In particular, the newly proposed Section 1(7a) of the draft BauGB is intended to give additional weight to residential construction in areas with a tight housing market. In development areas that are intended, at least in part, for residential use, residential development is to be considered in the overriding public interest and given priority in the balancing of interests. This significantly strengthens the position of residential construction projects.
2. New Flexibility for Residential Uses in the BauNVO
Project developers may gain additional opportunities for residential and mixed-use projects as a result of the proposed amendment to the Land Use Ordinance. For example, residential development is expected to become easier in core areas that have thus far primarily served retail, offices, and central facilities (Section 7 of the draft Land Use Ordinance). The new special zone category for experimental mixed-use areas (Section 11(2a) of the draft BauNVO) is also intended to create additional flexibility. This is contingent on the respective municipality designating the development areas accordingly. In general, when developing new projects, companies should examine whether locations and land-use concepts that were previously only feasible to a limited extent under planning law are now viable options.
3. Faster planning processes due to fewer participation steps
If a zoning plan must first be established or amended for a project, project developers will be able to obtain the necessary building permits more quickly in the future. To this end, the public participation procedures, among other things, are to be streamlined (Sections 3(3), 4(1), sentence 2, and 4a(2) and (3) of the draft BauGB).
4. Clear timeframes, but no guarantee of a quick plan
In the future, project developers should be able to plan their projects based on more specific timeframes. Urban land-use planning procedures should generally be completed within two years; there should be no more than twelve months between the end of the formal public participation process and the publication of the urban land-use plan (Section 4b(2) of the draft BauGB). However, these deadlines are for guidance only: according to the draft bill, exceeding them does not render the land-use plan invalid. Nevertheless, this is a legislative requirement that obligates municipalities to complete their urban land-use planning procedures, as far as possible, before the deadlines expire.
Conclusion: There are several ways to obtain a building permit more quickly
Building owners and project developers can help shorten the permitting process by incorporating legal options into their planning at an early stage. Depending on the project, they can avoid a standard permitting process, obtain a deemed approval, or use a type approval for multiple comparable projects. The available options also depend on the relevant state law.
The proposed amendment to the Building Code (BauGB) can expedite the start of construction in cases where building permits must first be obtained or amended. It is therefore in the best interest of project developers to take the legal framework into account as early as the site selection and project design phases.
See also:
What the “Construction Turbo” Means for Municipalities and Building Regulatory Authorities – KPMG-Law
Housing Construction Boost: More Living Space on Existing Properties – KPMG-Law
Mixed-Use Real Estate as an Opportunity for City Centers – KPMG-Law
Higher Fees for Planners Due to Cost Increases? What Clients Should Know – KPMG-Law
