ᐅ Questions Regarding the Interpretation of Section 34 of the Building Code
Created on: 2 Sep 2019 19:45
S
Schlenk-Bär
We have purchased a plot of land to build a single-family house. There used to be some old buildings on the property, which have now been demolished. We are currently focusing intensively on planning the house. There is no local land-use plan (building plan / planning permission) for the plot, so according to the responsible building authority, Section 34 of the German Building Code applies. I have read the legal text several times but did not gain much clarity, so I searched for interpretation aids... to say the least, it’s quite complex. I hope someone here in the forum can help us with our questions.
In the attached image below, our plot is outlined in red. There are land-use plans (building plans / planning permissions) for the two red areas. Section 34 states that a project is permissible if it aligns with the character of the immediate surroundings in terms of the type and extent of land use, building method, and the area of the plot to be built on, and if access infrastructure is secured.
What does this actually mean for our project? Should we orient ourselves according to the land-use plan on the right side? That would be a row of terraced houses standing perpendicular to the street, with houses arranged behind them. Or should we follow the three houses on the left side? Can three houses really be considered a coherent building context? Or the houses on the opposite side of the street?
How far from the street would we need to build our house? We definitely want to build farther from the street than the neighbors on the left side. What would be the best way to argue this? Could it help that an old building, which we have now demolished, was roughly in the center of the plot?
Thank you very much for your help.
In the attached image below, our plot is outlined in red. There are land-use plans (building plans / planning permissions) for the two red areas. Section 34 states that a project is permissible if it aligns with the character of the immediate surroundings in terms of the type and extent of land use, building method, and the area of the plot to be built on, and if access infrastructure is secured.
What does this actually mean for our project? Should we orient ourselves according to the land-use plan on the right side? That would be a row of terraced houses standing perpendicular to the street, with houses arranged behind them. Or should we follow the three houses on the left side? Can three houses really be considered a coherent building context? Or the houses on the opposite side of the street?
How far from the street would we need to build our house? We definitely want to build farther from the street than the neighbors on the left side. What would be the best way to argue this? Could it help that an old building, which we have now demolished, was roughly in the center of the plot?
Thank you very much for your help.
S
Schlenk-Bär7 Sep 2019 22:44Escroda schrieb:
Who was it that unsettled you? What kind of people were they? Architects? Structural engineers? Home sellers? No one specific, and I don’t think it’s really a matter of being unsettled, but just dealing with real life. I always ask critical questions, want to understand, and check things for plausibility. And yes, all of those you mentioned were involved.
Escroda schrieb:
Who interpreted what in what way? What opinions were expressed? Hard to detail precisely. In the end, it was a confusing mix that urgently needed to be sorted out. Everything was there:
- some called the paragraph a “rubber clause,” assuming it would somehow work out, but no one knew exactly how. Not very reassuring to me.
- others saw a strict building line at the front and considered the rest irrelevant
- someone else came up with a one-third rule; you can deviate by one-third from neighboring buildings. I couldn’t understand that at all. One-third of what exactly? Unclear.
- no one mentioned the rear building line; I only learned about that here on the forum
- everyone agreed the roof shape was important. After reading a lot, I found out the roof shape and pitch are obviously not criteria
- similarly with the plaster facade; however, we want brick. According to my research, that should be possible
- and so on
Escroda schrieb:
Then it is his job to skillfully present the desired plan so that it can be approved. That would be great. My expectation is that the planner is poorly informed, makes claims that are not true (see above), and we have to handle it ourselves—that is, convince the planner. On top of that, the authority is uncooperative. The responsible case officer is anything but helpful—simply moody and annoyed. I called her before we bought the plot to confirm it was designated as building land. Even then, there were disputes regarding § 34. Her statements were inconsistent and not comprehensible. She could not justify anything. My biggest concern—that the authority is poorly organized internally and therefore not transparent externally—was confirmed. Later, I called again (still during the purchase preparation) and spoke to a very friendly employee covering for someone on sick leave, who could not understand his colleague’s statements.
So, that’s how it comes to having to take care of things yourself. I would have preferred it to be different.
A general note, based on our experience during house construction:
The responsible caseworker will eventually return from sick leave, so always maintain a polite tone—even if you feel the decision-maker lacks competence. However, you should, of course, advocate firmly for your goals.
If decision-making parties—possibly out of stubbornness, wounded pride, or similar reasons—become uncooperative, you will face a very unpleasant additional struggle. Even if they ultimately turn out to be wrong or a supervisor can be involved, this can significantly delay your project and cause a lot of stress that you would be better off avoiding.
The responsible caseworker will eventually return from sick leave, so always maintain a polite tone—even if you feel the decision-maker lacks competence. However, you should, of course, advocate firmly for your goals.
If decision-making parties—possibly out of stubbornness, wounded pride, or similar reasons—become uncooperative, you will face a very unpleasant additional struggle. Even if they ultimately turn out to be wrong or a supervisor can be involved, this can significantly delay your project and cause a lot of stress that you would be better off avoiding.
Schlenk-Bär schrieb:
some called the paragraph a "rubber paragraph" Yes, especially considering the interpretation of the actual building boundaries, this impression arises. Have you already found and read this ruling:
Good luck Gelsenkirchen, decision dated 02.11.2011 - 5 L 947/11
Schlenk-Bär schrieb:
others saw a strict building line at the front That can be seen that way. Your bad luck is that the street setbacks of your neighboring houses differ little to not at all. In my opinion, however, the small number of neighbors (3) argues against deriving an actual building line from this. Ultimately, you are at the mercy of the grumpy caseworker—unless you can afford a court procedure both in terms of time and money. The same goes for the draft designer; even if they are incompetent, nothing proceeds without their signature.
Schlenk-Bär schrieb:
someone else established a 1/3 rule; you can deviate by 1/3 from the neighboring buildings. Nonsense.
Schlenk-Bär schrieb:
- everyone agreed that the roof shape was important. Now I have read so much and found out that roof shape and angle are clearly not criteria
- it was similar with the plaster facade; but we want clinker brick; according to my research, this should be possible
The case law here is clear: without a design statute, the authority has no influence on these features. Only the building code’s emergency brake against disfigurement would apply, but the threshold for this is very high.
S
Schlenk-Bär8 Sep 2019 10:13On Wednesday, we have an appointment with a new architect acting as our planner. Let’s see how he evaluates the situation. If he makes a good impression and works in our interest, I would like to entrust him with the further implementation and not have to deal with it myself anymore. That would be the best-case scenario.
Otherwise, the next step is a personal visit to the authority during their office hours. I will definitely report back on how it went.
Otherwise, the next step is a personal visit to the authority during their office hours. I will definitely report back on how it went.
S
Schlenk-Bär8 Sep 2019 15:19ypg schrieb:
Because the building authority also takes the existing structures into account.
The shed was already far back. Exactly where you wanted to build...
It doesn't have to be that way, but it could have been helpful.
But it doesn’t matter: life isn’t raging here in the forum, it’s out there. Thank you also for your support. I found an interesting document on the interpretation of § 34. It states: “The building plot itself is also part of the immediate surroundings. The development on it, whether still present or removed but still having ongoing effects, shapes the immediate environment.”
S
Schlenk-Bär8 Sep 2019 15:45Escroda schrieb:
Good luck Gelsenkirchen, decision dated 11/02/2011 - 5 L 947/11Very interesting... what I read there doesn’t always make me happy. But at least it helps to assess the situation. I have a question: in this thread, it was mentioned that the area to the right (with the development plan / building permit area) cannot be included. Why is that? One could consider the terraced house as an atypical outlier and include the houses to the right in the progression of the blue line. That would give us a building area that we would find favorable.In the above-mentioned decision, I found the following quote:
“The plot area permitted for construction can be defined in a development plan / building permit through building lines, building boundaries, and building depths according to § 23 of the Land Use Ordinance (Baunutzungsverordnung). Properties located in an unplanned inner area within the meaning of § 34 of the Federal Building Code (Baugesetzbuch) — which undisputedly includes the building plot of the co-defendant — are thereby considered equivalent to the qualified planned area in terms of buildability. Where specific regulations of a development plan are lacking, the existing surrounding development takes their place, into which the project must fit according to § 34 para. 1 sentence 1 of the Federal Building Code.”
Is this now invalid if taken out of context, or could I use this as an argument for us? That is, to effectively draw a building boundary into the development plan area, extending over the terraced house?
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