Planning, Environmental and Administrative Law

Planning and environmental law in brief

Planning and environmental law determines whether and how land can be used, buildings erected and industrial installations operated in Germany. The Building Code (Baugesetzbuch, BauGB) governs urban land-use planning and the planning permissibility of projects, while the building regulations of the sixteen federal states govern building permits and construction safety. The Federal Immission Control Act (Bundes-Immissionsschutzgesetz, BImSchG) regulates installations with significant environmental effects, the Water Resources Act (WHG) governs water use, the Federal Soil Protection Act (BBodSchG) deals with contaminated land, and the Circular Economy Act (KrWG) with waste. Projects with significant environmental effects require an environmental impact assessment under the Environmental Impact Assessment Act (UVPG).

Administrative law provides the procedural framework: how permits are applied for and granted, how third parties can object, and how decisions are reviewed by the administrative courts. For companies, the key questions are which permits a project needs, how long it will take to obtain them, how robust they will be against challenges by neighbours and environmental associations, and what liabilities attach to a site. This page explains the main instruments of planning and environmental law, administrative proceedings, compulsory purchase and constitutional remedies. For the wider context, see our overview of real estate and public law.

Building and planning law under the BauGB

Municipalities control land use through land-use plans: the preparatory land-use plan (Flächennutzungsplan) for the whole municipal area and binding land-use plans (Bebauungspläne) for specific areas.

Whether a project is permissible under planning law depends on where it is located. In the area of a binding land-use plan, the project must comply with the plan's designations (§ 30 BauGB). In built-up areas without a plan, it must fit into the character of the surroundings (§ 34 BauGB). In the outer area, projects are generally permissible only if they are privileged, for example agricultural uses, public utilities, certain energy installations, and if public interests do not oppose them (§ 35 BauGB).

The municipality's consent is required for projects under §§ 34 and 35 BauGB, and building permits are issued by the lower building authorities under state law.

For large developments, investors often agree an urban development contract (städtebaulicher Vertrag) with the municipality, which may oblige them to bear infrastructure costs or provide affordable housing in return for a new plan. A recent reform, the so-called Bau-Turbo, allows deviations from the Building Code for housing projects with the municipality's consent until the end of 2030 (§ 246e BauGB), and the municipality's consent is deemed granted if not refused within three months (§ 36a BauGB). See our insight on the Bau-Turbo.

Immission control permits in planning and environmental law

Installations that, because of their nature or operation, are particularly likely to cause harmful environmental effects or otherwise endanger or significantly disturb the public or the neighbourhood require a permit under § 4 BImSchG. The installations concerned are listed in the Fourth Ordinance implementing the BImSchG (4. BImSchV), which also determines whether the formal procedure with public participation or the simplified procedure applies. They include chemical plants, power plants, large combustion installations, waste treatment facilities, certain livestock facilities and wind turbines above a certain height. The permit must be granted if the operator's obligations and other public law requirements are met (§ 6 BImSchG); it is not discretionary.

The authority must decide within seven months of receiving the complete application, or three months in the simplified procedure, and may extend the period once by up to three months where the examination is difficult (§ 10(6a) BImSchG). In practice, the time needed to complete the application documents and expert reports often matters more than the statutory period.

The permit has a concentration effect: it includes other approvals relating to the installation, such as the building permit, but not water law permits, mining operating plans or planning approval decisions (§ 13 BImSchG). An early start of construction may be permitted before the final decision (§ 8a BImSchG). Material changes to a permitted installation require a modification permit (§ 16 BImSchG). See our insight on immission control permits.

A typical permitting path

1. Early scoping meeting with the authority to agree the procedure, required expert reports and the scope of any environmental impact assessment.
2. Preparation of application documents: site plans, technical descriptions, noise, air, odour and safety reports, species surveys and water law applications.
3. Completeness check by the authority and involvement of other authorities whose remit is affected.
4. In the formal procedure, public announcement, display of documents, objection period and, where held, a public hearing.
5. Decision, often with conditions and reservations, followed by the period in which third parties can challenge the permit.

Water, soil and waste

Every use of a water body, including the abstraction of groundwater and the discharge of substances, requires a permit or authorisation (§ 8(1) WHG). Unlike immission control permits, water permits are at the authority's management discretion, even where no ground for refusal applies. Direct discharges of wastewater require treatment according to the state of the art, and anyone who adversely changes water quality is liable for resulting damage regardless of fault. See our insight on water law permits.

Contaminated land is a major liability risk in transactions and redevelopments. The polluter and its universal successor, the owner and the person in actual control of the site can be ordered to remediate harmful soil changes and contaminated sites (§ 4(3) BBodSchG). Former owners may remain liable in certain cases, and those liable have a statutory compensation claim against each other according to their contribution, unless otherwise agreed. Authorities can order investigations and remediation and may require security for long-term measures. See our insight on soil protection and contaminated sites.

In planning and environmental law, waste rules under the Circular Economy Act determine whether materials are waste, by-products or have reached end-of-waste status, which matters for recycling businesses and industrial operators. The waste hierarchy prioritises prevention, preparation for reuse and recycling over other recovery and disposal. Producer responsibility schemes cover packaging, electrical equipment, batteries and other products, and operators of treatment facilities need specific permits and must comply with record-keeping duties.

Nature, species and monument protection

Nature conservation law often decides the timetable of a project. The Federal Nature Conservation Act (BNatSchG) prohibits, among other things, killing or injuring wild animals of specially protected species and significantly disturbing strictly protected species and European birds during sensitive periods (§ 44(1) BNatSchG). Species surveys must therefore cover the relevant seasons, which can take a full year, and mitigation measures or exceptions must be planned early. Interventions in nature and landscape require compensation measures, and projects near Natura 2000 sites need an appropriateness assessment. Listed buildings and archaeological sites are protected under state monument protection laws, which may require permits and limit alterations.

Planning approval and renewable energy

Linear infrastructure such as roads, railways, waterways, high-voltage lines and pipelines is approved through planning approval procedures (Planfeststellung), which concentrate all required permits in one decision after a public hearing. Renewable energy installations and associated facilities are by law in the overriding public interest and serve public safety, and until electricity generation is nearly greenhouse gas neutral they are to be given priority in the weighing of protected interests (§ 2 EEG). This rule has strengthened the position of wind and solar projects in permitting and in court. See our page on renewable energy and the EEG.

Permits in transactions and operations

Immission control permits relate to the installation rather than to the operator, so they generally continue to apply when an installation changes hands, although the authority should be informed of the change of operator and operator-related obligations must be checked. Building permits likewise attach to the property. Buyers should nevertheless check that the actual operation matches the permitted scope, that conditions have been complied with, and whether the authority has issued subsequent orders. Operational changes made over the years without a modification permit are a common finding in due diligence and can lead to fines or orders to restore the permitted state.

Environmental impact assessment and third-party challenges

Projects listed in the annex to the UVPG require an environmental impact assessment, either mandatorily or after a preliminary screening. The assessment is integrated into the permit or planning approval procedure and includes public participation, the involvement of environmental authorities and, for projects with cross-border effects, consultation of neighbouring states. Errors in the assessment, such as an incomplete screening or insufficient documentation, are a frequent ground of challenge.

Third parties can challenge permits before the administrative courts. Neighbours can invoke provisions that protect them individually, such as noise limits and distance requirements.

Recognised environmental associations can challenge certain decisions without having to claim a violation of their own rights, provided the decision falls within the scope of the Environmental Appeals Act (§ 2 UmwRG). An objection or action for annulment generally has suspensive effect (§ 80(1) VwGO), but for many infrastructure and energy projects the law excludes suspensive effect, and the permit holder can also apply for an order of immediate enforceability. The robustness of a permit therefore depends as much on the quality of the procedure and documentation as on its substance.

Planning and environmental law disputes, compulsory purchase and constitutional remedies

Administrative decisions can be challenged by objection (Widerspruch), where state law provides for it, and by action before the administrative courts under the Code of Administrative Court Procedure (VwGO). Actions for annulment challenge burdensome decisions, and actions for the issue of a decision are used when a permit is refused or delayed.

Interim relief is available where speed is essential, for example to restore or suspend the immediate enforceability of a permit pending the main proceedings. Proceedings before the administrative courts are largely written, the court investigates the facts of its own motion, and expert evidence plays a major role in environmental cases. For certain large infrastructure and energy projects, the higher administrative courts or the Federal Administrative Court (Bundesverwaltungsgericht) decide at first instance, which shortens proceedings considerably compared with the usual three instances.

Compulsory purchase is the ultimate tool for infrastructure and urban development. Under Article 14(3) of the Basic Law, expropriation is permissible only for the public good and only by or under a law that regulates compensation. The Building Code and sector laws for roads, railways and energy lines provide the legal bases. Expropriation is available only where the purpose cannot be achieved otherwise and the acquirer has seriously tried to acquire the land on reasonable terms (§ 87 BauGB), and compensation is based on market value. Early possession is possible for urgent projects. See our insight on compulsory purchase and compensation.

Where a company's fundamental rights are infringed by legislation or by final court decisions, it may file a constitutional complaint with the Federal Constitutional Court after exhausting other remedies; questions of EU law can be referred to the CJEU by the courts. See our insight on constitutional complaints by companies.

Illustration: a hypothetical chemical company plans to expand a production line at its existing site. Its counsel determines that the change is material and requires a modification permit under § 16 BImSchG with public participation, that a new cooling water abstraction needs a separate water permit under the WHG, and that soil investigations are needed because part of the site was used for storage decades ago. By preparing noise, air quality and species protection reports before filing and holding an early meeting with the authority, the company obtains a complete application status quickly and reduces the risk of a successful challenge by neighbours.

How TRW & Co helps

We advise developers, industrial companies, energy and infrastructure investors and public bodies on planning and environmental law in Germany. We assess planning status and permit requirements, prepare and manage permit applications, negotiate urban development contracts and represent clients in public participation. We defend permits against challenges by neighbours and environmental associations, and challenge unlawful decisions on behalf of clients before administrative courts. We advise on contaminated land, water and waste law in transactions and operations, on compulsory purchase and compensation, and on constitutional complaints. To discuss a project, please contact us. This page is general information and not legal advice.