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BVerwG NJW 1999, 592 4 CN 2/98 Saarlouis - decision
24 September 1998
Professor Basil Markesinis
Raymond Young


The applicants objected in the norm control proceedings to a building plan by the respondent, by which an area of land, until now predominantly wooded, is shown as private green space and described as "permanent small gardens". It includes a club house and parking spaces. The applicants claimed that their residential land, which was only separated from the planned area by a 10 m wide protective strip used as a paddock, was unreasonably injuriously affected by noise during leisure time coming from the small garden facilities and the club house. The respondent had neglected the importance of domestic peace in the balancing exercise and had wrongly made no use of determination option in § 9 (1) no 24 of the BauGb (Building Code). The Oberverwaltungsgericht (upper administrative court) rejected the norm control application as inadmissiblebecause the applicants were not empowered to make the application.

By an appeal in law admitted by the norm control court, the applicants objected to the violation of § 47 (2) sentence 1 of the VwGO (Administrative Courts Order), as well as their right to just balancing of their interests. The appeal in law resulted in reference back.
Reasons: II. The appeal in law is well founded. The judgment of the norm control court violates federal law in this respect when it denies the applicants' power to make the application under § 47 (2) sentence 1 of the VwGO (new version). A final decision about the norm control application cannot be made by the Federal Administrative Court in view of the absence of sufficient factual findings, so the matter must be referred back to the norm control court for further deliberationand decision.

1 a) The norm control court denies the power to make the application simply because the applicants had not claimed the infringement of the right asserted by them in a sufficiently concrete and substantiated manner. It gives as its more detailed reasoning that, on the basis of the layout of the land and the kind of existing and planned uses, violation of the requirements of consideration or balancing was "obviously" ruled out. In these statements, the lower instance court is exaggerating the requirements for explanation when a claim is made for infringement of a right within the framework of § 47 (2) sentence 1 of the VwGO. As the senate has already decided in its judgment of the 10. 3. 1998 (reference omitted) ... no higher requirements can be placed on the making of a claim of an infringement of a right under § 47 (2) sentence 1 of the VwGO (new version) than those which also apply for the power to make a claim under § 42 (2) of the VwGO. Accordingly the applicant satisfies his duty of explanation if he puts forward sufficiently substantiated facts which make it appear at least possible that a right of his is infringed by the determinations in the building plan. According to the submission of facts by the applicants, an infringement of the balancing requirement protecting third parties - as is yet to be explained - is not obviously and unambiguously impossible according to every way of looking at the matter (see on the so-called possibility theory see eg [reference omitted]). That clearly follows from the grounds of the norm control decision itself. It is explained there in detail, after interpretation of the contents of the file as a whole and the opinion of the respondent, that the requirements of consideration or balancing were not in fact violated in the actual case here - with particulars of why. This explanation assumes that violation of the right at least seems possible. The type and scope of the deliberations of the norm control court therefore in their nature accord with examination of whether an application was well founded. However, the proposition enshrined in the state of the law until now is that a procedural approach to § 47 (2) sentence 1 of the VwGO cannot be allowed which would lead in the end result to treating the examination of the matter (which is in itself necessary) as a question of the permissibility of the application. This also applies to the new version of the power to make the application (referencesomitted).

b) From the content of the Sixth Statutory Amendment to the VwGO and other statutes (reference omitted) as a whole (reference omitted), the senate sees no possibility of concluding that the requirements for claiming an infringement of a right in § 47 (2) sentence 1 of the VwGO (new version) should be higher than in § 42 (2) of the VwGO In the face of the similarity in wording of the two regimes and the clear indications from the history of the origin of the new version of § 47 (2) of the VwGO, according to which the power for the norm control application should be adapted to the power for the claim to nullify (reference omitted), there remains in this respect no interpretatorydiscretion.

The mere verbal assertion of a theoretical infringement of a right may admittedly not suffice in the individual case for claiming an infringement of a right in the sense of § 47 (2) sentence 1 of the VwGO if this assertion only appears to be a pretext and the actual presence of an infringement of a right is obviously ruled out. This kind of case is not present here. The norm control court admittedly thinks that an infringement of a right is "obviously" ruled out here. The extent and intensity of the examination which precede this outcome, however, exclude the acceptance of a case here in which an infringement of a right is obviously ruled out. Another reason why this is so is that the statements in the application or claim document are in principle decisive for the examination of the power to make the application, but not - as has occurred here - theevaluation of the procedural material as a whole.

c) In principle no higher demands are to be placed on the requirements for claiming an infringement of a right when it is a question of the right to a just balancing exercise (see below on this). In this respect also, it suffices if the applicant puts forward facts which make defective treatment of his interests in the balancing exercise appear to be possible. As a rule it would however definitely be too much to expect of the applicant if he additionally had to explain in detail that the alleged error in balancing exercise was also significant in the sense of § 214 (3) sentence 2 of the BauGB. This question can as a rule only be answered in the knowledge of the planning system as a whole, and, according to its structure, belongs to the examination of whether thenorm control was well-founded.

If the applicant claims an infringement of the balancing requirement, he must mention an interest of his which has been infringed and which really should have been considered in the balancing exercise. It is not every private interest which has to be considered in the balancing exercise, but only those which have a connection relevant to town planning in the actual planning situation. In this respect reference can be made to the case law of the senate on the concept of a disadvantage under § 47 (2) sentence 1 of the VwGO (old version) (reference omitted). Thus, in particular, interests which are of trivial value or flawed, and those for which there is no trust worthy of protection in their continued existence, or which were not recognisable by the commune in the decisionabout the plan are not significant for the balancing exercise.

2. The decision of the norm control court is also not correct on other grounds(see § 144 (4) of the VwGO).

a) The rejection of the norm control application would have been correct in the end result if the applicants could not rely on a norm which grants them a defensive right - at any rate in principle - against the infringements claimed. The norm control court regards a building law requirement for consideration as protecting third parties in this respect, although it remains unclear from what norm this requirement for consideration is derived. This gives rise to the following explanation. The senate has repeatedly referred to the fact that the requirement for consideration only arises in accordance with ordinary statutes and not as a general requirement encompassing building planning law as a whole (reference omitted). The duty of the planning commune to avoid unreasonable prejudice to neighbouring land arises in accordance with the requirement for balancing for which a norm is created in § 1 (6) of the BauGB. There is no room for a separate "requirement for consideration in building planninglaw" - in the sense of an independent legal category.

b) The decisive question - left open by the norm control court - is therefore whether the requirement for balancing in § 1 (6) of the BauGB acquires an effect protecting third parties. The senate answers this question in the affirmative on the following grounds.
Whether a norm of public law has an effect protecting third parties depends on whether it - at least also - has an exclusively objective law character and only serves the public interest, or whether it is intended to serve the protection of individual interests to such an extent that the holders of the individual interests should be able to demand the observance of the legal principle (reference omitted). In the absence of an express regime for an effect protecting third parties, it is only possible to determine which of these two cases applies by interpreting the sense and purpose of the pertinent norm in each case (reference omitted).
The wording of the provision according to which, on the drawing up of building implementation plans, "the public and private interests are" to be "justly balanced against each other and between each other" argues first of all, on an unbiased view of the matter, for the norm being also intended to serve the private interests. Such a formulation, which expressly demands just consideration of the private interests as well, corresponds to the typical manifestation of a norm protecting third parties. In view of this initial position, the norm could only be found not to protect third parties if there are sufficient grounds from the context of the regime to make it clear that the requirement for balancing is nevertheless only to serve the public interest. That is however not the case.
The Federal Administrative Court has so far assumed that the specialist planning law balancing provisions according to which, in establishing the plan, the public and private interests are "to be considered within the framework of the balancing exercise" (references omitted) have an effect protecting third parties (references omitted)...
In more recent times, doubts have in this respect been raised about the protective norm character of the requirement for balancing when, inconsistently with the system, competence would thereby be conferred on mere factual interests - beneath the legal threshold - or such interests would be raised to the level of subjectivepublic rights (references omitted).

These objections are not effective. A private interest, which is to be considered in the balancing exercise, does not itself become a subjective right because the requirement for balancing gives protection to third parties. Such a private interest is also not competent as such in the sense that the private individual could demand the implementation of his interest - as in the case of a subjective right. The private individual merely has a subjective right for his interest to be "worked in" to the balancing exercise in accordance with its weight. The result is therefore still open and can lead to anything from complete setting aside of the interest, through partial consideration of it, to itstotal implementation.

A further argument is put forward against the idea that the balancing requirement in specialist planning law protects third parties. It is that no objective ground arises from the function of establishing the plan as permission for facilities for saying that in the establishment of the plan (in contrast to the permission for facilities by individual approval) not only rights but also interests of neighbours beneath the legal threshold are to be protected (reference omitted). This argument does not succeed. Here as well (1) to begin with, it is not the interest as such which is protected by the requirement for balancing, but only its balancing in manner free from error and (2) simple positive law regulates permission for facilities by establishment of the plan in a different manner to permission for facilities by individual approval. In the latter case, statute confers on the applicant as a rule a claim for approval if - besides public interests - rights of third parties do not contradict this. On the other hand, in the establishment of the plan, positive law provides expressly for a balancing consideration of mere interests as well. These different permission instruments are based on a different position about interests. In the case of the individual permission, as a rule a claim by the applicant based on a basic right to set up the facility in the location applied for takes central place.

Typically with the establishment of the plan it is a question of giving effect to a determined planning goal in such a way that the public and private interests affected by the planning are appropriately adjusted. If therefore the planning content of the establishment of a plan is greater than that of an individual approval, this is even more so for the building implementation planning of the commune. The discretion in formulation - not examinable by the court so far as its core area is concerned - which is inherent in all planning corresponds on the other hand with the right of the person affected by the planning for his significant interests to be treated in the balancing exercise in a manner which is free from error.

c) The norm control court assumes that the applicants' interest in avoiding the disadvantageous alteration of the situation of their plots caused by the small garden facilities represents an interest which is significant in the balancing exercise. From the point of view of the law applicable in this appeal in law nothing can be said against this. The applicants have also claimed that their interest had not been sufficiently met in the balancing exercise because the protective strip shown between the small garden facilities and their plot to reduce disturbances was not sufficient. The applicants have thereby satisfied the explanation requirements of § 47 (2) sentence 1 of the VwGO. The statements of the norm control court on this subject that the requirement for balancing is not violated in the end result in relation to the applicants' interests correspond with the case law of the senate and can - so far as the factual side is concerned - likewise not be objected to by the court hearing the appeal in law, for want of any appropriate complaint. Nevertheless the Federal Administrative Court cannot decide against the applicants because there are no factual findings by the norm control court in relation to the question of the formal validity of the building plan and the other defects objected to by the applicants. The case must therefore be referred back to the norm control court.

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