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No preservation law approval fiction for projects requiring building permits

9. December 2021
From Probandt
Reading time: ca. 1 Minute

Many building owners believe that permits can be considered granted after certain procedural deadlines have expired (so-called fictitious approval). In fact, this only applies if the law stipulates it. There is such a provision for building applications in the simplified building permit procedure pursuant to Section 69 (4) BauO and for preservation permits in urban development or social preservation areas (Section 173 (1) sentence 1 BauGB). However, the processing period does not begin to run until all statements and evidence required for the decision are available.
Often, a deemed approval is worth little because it can be withdrawn by the authority if the authority is of the opinion that the approval is unlawful. The builder then only receives compensation for his so-called loss of confidence. As a rule, this is only the lost expenses incurred in reliance on the fictitiously granted permit.
However, the fictitious approval only applies to applications for approval under preservation law if the project does not require building approval. If, on the other hand, the project requires a building permit, the concentration effect of the building permit pursuant to Section 173 (1) sentence 1 of the German Building Code (BauGB) precludes the possibility that any required conservation permit could be deemed to have been granted in isolation. This was decided by the Higher Administrative Court of Berlin-Brandenburg (19.08.2021 - 2 S 7/21).
For questions on this topic, please contact attorney Dr. Haaß.

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