Does public law control whether a landowner may construct a new building or refurbish an existing building on its land?
Yes, a building permit is normally required before any operational development or material change of use can occur. The building permit must be applied for at the relevant Building Supervisory Authority (Bauaufsichtsbehörde) who controls that the building application complies with all relevant public law regulations. In particular, it checks whether the building project is in line with the development plan and other urban development regulations, whether all technical and safety requirements have been met, all environmental regulations have been observed and the rights and interests of neighbours have been taken into account. However, the Building Acts at state level contain specific lists of buildings and other types of construction that do not require a building permit (typically minor projects, such as the construction of fences, huts, etc.), as long as they are in line with the applicable development plan. The Building Land Mobilization Act (Baulandmobilisierungsgesetz) came into effect on 23 June 2021 and grants the competent building authorities the right to issue a building order against a landowner in case of urgent housing needs in tense residential markets (Sec. 175 (2), 176 (1) sentence 1 no. 3 of the Federal Building Code). Additionally, the Act simplifies the granting of exemptions from existing development plans in favour of housing construction for building permit authorities.
Furthermore. Sec. 9 (2d) of the Federal Building Code was amended and now authorizes the competent building authorities to define in their development plans on a sectoral level (sektoraler Bebauungsplan) in which areas residential properties and/or social housing must be built.
