As of: March 25, 2024, 7:00 a.m
By: Gabi Werner
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If applications for building permits are rejected by the municipality, the district office can replace the agreement.
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What can be done about the construction frenzy of some investors?
To set an example, Bad Wiessee recently rejected several large construction projects.
With the result that the district office replaced the community agreement.
This creates thick air.
The district office is now making it clear when it will use this means.
Bad Wiessee/Tegernseer Tal
– A pretty little house on a large plot of land is being replaced by an apartment building including an underground car park.
The municipalities around Tegernsee are familiar with such applications.
In Bad Wiessee, the building committee recently clearly rejected such a project on Breitenanger and Luckenkopfstrasse.
It is questionable whether it is of any use: in both cases there is instead a building permit from the Miesbach district office as the higher authority.
In official German it says: “The community agreement will be replaced.”
The community has filed a lawsuit
In the case of Luckenkopfstrasse, Bad Wiessee even filed a lawsuit with the Bavarian Administrative Court (we reported).
Here, the building administration and committee see the approval as a violation of applicable local law because the application does not comply with the local planning statutes in detail.
The Breitenanger case is different: Here, the Wiessee building authority manager Anton Bammer made it clear at the meeting that the application had to be approved from a “building law perspective” - but the committee still stuck to its no.
It was said that the complex was completely oversized given the difficult underground conditions.
The fact that the district authority instead puts its stamp on the application documents is causing resentment in Bad Wiessee.
When asked, Sabine Kirchmair, press spokeswoman for the district office, explains: “It happens again and again that the district office has to replace a refused municipal consent in building matters.” Given the large number of building applications to be processed, these are “isolated cases,” emphasizes Kirchmair , which, however, admits that the cases in Bad Wiessee have increased recently.
District office bears liability risk
But how does it happen that municipalities and the district office repeatedly make contradictory decisions?
“The legal situation has changed,” says Kirchmair.
According to recent case law from the Federal Court of Justice (BGH), in the event of an unlawful failure of consent, the full liability risk now lies with the building supervisory authority, i.e. the district office.
Municipalities can no longer be held liable, explains Kirchmair.
In view of this legal situation, the building supervisory authorities had received an order from the Supreme Building Authority in the Ministry of the Interior to replace the municipal agreement if there was even a reasonable doubt that the municipalities had wrongly refused to agree.
“The district office has no discretion,” emphasizes the spokeswoman.
And: “Of course, we always try to respect the decisions of the affected municipalities, but we actually have strict limits in this regard.” In plain language, this means: As soon as the relevant building law is available, approval must also be granted.
The community wants more communication
So much for the legal situation.
In Bad Wiessee there has recently been criticism of the district office's communication behavior.
Kirchmair assures: “Of course, before the agreement is replaced, the community will be heard by the district office with a detailed explanation of the relevant reasons, as required by law.” The community will then have the opportunity to comment on the matter again.
“In some cases,” said the spokeswoman, “an informal conversation with the respective municipality is sought before such hearing letters are sent out.”
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Building authority manager Bammer would like to see even more here: namely, that the district authority would seek a conversation with the client in order to work together to ensure that a replanning might take place after all: “We should talk to each other more.”