04.07.2017 | KPMG Law Insights

Urban planning law, immission control law and urban areas

Urban planning law, immission control law and urban areas

The German Building Code (Baugesetzbuch) and the German Land Use Ordinance (Baunutzungsverordnung) are facing major changes: On June 16, 2016, the German Federal Ministry for the Environment, Nature Conservation, Building and Nuclear Safety published a draft bill on the “Draft Act on the Implementation of Directive 2014/52/EU in Urban Planning Law and on Strengthening New Coexistence in the City,” and on July 7, 2016, a “Draft Amendment to the Technical Instructions on Noise Abatement (TA Lärm).” In particular, the introduction of the new area type “urban area” into the Building Use Ordinance has been strongly criticized from various sides.

The new building area category “urban area” to be inserted in § 6a of the Building Use Ordinance (BauNVO) – i.e. between the “mixed area” according to § 6 and the “core area” according to § 7 – is intended to facilitate the planning of a “functionally mixed area of short distances”, particularly in inner-city locations.

More flexibility in designating inner-city areas with residential uses.

Deviating from the principle of spatial grouping of the same or similar functions on the one hand and the separation of different functions on the other hand, which has dominated the BauNVO up to now, the legislator now apparently wants to recognize the trend “back to the city” and the concept of a mixed-use city and record it in regulatory terms. In this context, the planning municipalities are to be given more flexibility to allow residential uses in inner-city areas as well, without giving up the fundamentally high level of noise protection for these areas. “Urban areas” are therefore intended to serve both residential and commercial uses as well as social, cultural, and other facilities in a small-scale mix of uses, where the businesses and facilities do not substantially interfere with residential uses.

Nature of the permitted mix of uses under criticism

According to the draft bill, buildings will be permitted in the future that are used for residential purposes to a considerable extent, but not exclusively, especially not on the street-facing first floor; exceptions are planned for purely residential buildings. In addition, retail businesses, pubs and restaurants as well as businesses in the accommodation sector, other (not significantly disruptive) commercial businesses, facilities for administration as well as for religious, cultural, social, health and sports purposes and places of entertainment are to be permitted to a certain extent and with a more closely defined purpose.

The absence of commercial and office buildings in the enumerations pursuant to § 6a BauNVO is conspicuous. The German Federal Ministry for the Environment, Nature Conservation, Building and Nuclear Safety (BMUB) apparently fears that these buildings contribute to the “desolation” of inner-city areas rather than to their greater “urbanity.” From the point of view of the regularly low noise emissions caused by such buildings, however, they are likely to be appreciated – as an admixture, so to speak – by residents from time to time. In addition, some critics believe that large-scale retail establishments with a sales area of more than 800 square meters – already the manifestation of many modern food retail concepts – should not be permitted in a “city of short distances” only in “core areas” and certain “special areas” as is currently the case. They should also be allowed in “urban areas,” but the draft bill does not regulate this so far.

Changes to be expected with planned building density and immission guide values for noise

In addition to the aforementioned stipulations on the type of use, the new provisions on the permissible level of building use in “urban areas” are of particular importance. With a permissible floor area ratio (GRZ) of 0.6 and a floor area ratio of 3.0, dense development is to be made possible. Critics from the ranks of the law initiators, namely the states of Bavaria and the Free and Hanseatic City of Hamburg, and the Zentraler Immobilien Ausschuss e. V. (ZIA), on the other hand, consider a GRZ of 1.0 to be urgently necessary for this purpose. Changes can probably still be expected here.

Another point of criticism are the changes to TA Lärm that have been intended so far. The Association of German Chambers of Industry and Commerce e. V. (DIHK) has expressed the fear that the new type of area could lead to a conflict-prone approach of residential uses to commercial and industrial areas, which could result in the displacement of emitting businesses. The DIHK as well as the ZIA point out that with the new type of area of the “urban area” the principles of the immission control separation according to § 50 Federal Immission Control Act and the urban functional division of the building areas would be equally broken through. Against this background, and in order to take account of the objective of a mix of uses in the “urban area”, the DIHK and the ZIA are calling for the immission guide values of the TA Lärm to be extended further than previously envisaged. In addition, they propose amendments to the TA Lärm (Technical Instructions on Noise) to ensure that commercial noise is treated equally with traffic noise (which has been privileged up to now). Furthermore, the possibility should be created to take technological progress into account in the immission law assessment, such as passive noise protection measures, for example by installing modern soundproof windows. In the latter case, the TA Lärm would have to provide for the determination of immission values in the interior rooms themselves as an alternative to the immission guide values to be measured in front of the window.

We will report further on the progress of the legislative process, which is expected to be completed before the end of this legislative period.

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Dr. Rainer Algermissen

Head of Construction and Real Estate Law

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