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Case:
BVerwGE 34, 301 IV C 105.66 Planungsleitsätze -decision
Date:
12 December 1969
Judges:
Mr Raymond Youngs
Copyright:
Sir Basil Markesinis QC

1. The approval of a building plan is just as much an administrative act as refusal of approval.
2. Failure to comply with the time limit provided for in § 6 (4) sentence 1 of the BBauG (Federal Development Act) does not result in the approval applied for being deemed to be given.
3. On the connection between planning and planning discretion.
4. On the significance of § 1 (4) and (5) of the BBauG as a limit to planning discretion.
...

Judgment of the fourth senate of the 12th December 1969 - BVerwG IV C 105.66
I. Verwaltungsgericht Braunschweig
II. Oberverwaltungsgericht Lüneberg
...

The claimant community W seeks from the defendant government president the approval of a building plan on which it has decided.

The community W has about 360 inhabitants. It is divided into three areas physically separate from one another: W (approx 240 inhabitants), S (approx 70 inhabitants) and Neu-S/Neu W (approx 50 inhabitants). An area use plan does not exist.
...

The building plan ... relates to an area of about 3 ha in size, formerly used for agricultural purposes. Directly to the west of this area is the last house in Neu-W, the S farm, which is about 500 metres to the east of the remaining houses in Neu-W. Originally the plan area belonged to the agricultural estate S which was about 6 ha in area. After the former proprietor of the farm encountered financial difficulties, he began in 1961 to divide the (future) plan area into lots, and to sell to people who were interested in development and who were not engaged in agriculture. The contracts concluded at that time did not need land transaction approval under § 19 (6) of the BBauG. The building plan shows a total of 17 building sites. According to the established use, there is a general residential area with open single storey building. The defendant refused to approve the plan. He based this decision on the ground that an area use plan needed to be drawn up beforehand. Besides this, the planning could not be harmonised with the traffic situation. The ingress of increased traffic to the main road would endanger the through traffic, as well as the inhabitants, and in particular the school children in the housing estate. As things stand, the natural development of the community ought to take place in the area around the W area.

The claimant has raised an obligation claim which was unsuccessful before the Verwaltungsgericht (administrative court) and the Oberverwaltungsgericht (higher administrative court). Its appeal in law was also rejected.

Grounds:

The claim, which seeks an approval under § 1 (1) of the BBauG, is permissible as an obligation claim, as this approval is concerned with an administrative act. No objections can be raised to the need for it eg on the basis that the defendant did not decide the claimant's application for approval within three months, and violated § 11 sentence 3 in combination with § 6 (4) sentence 1 of the BBauG by this delay. This is because this violation does not have the legal consequence that the approval applied for would have to count as having been given. In contrast to the case of § 19 (4) sentence 3 of the BBauG, the statutory provision gives no ground for such a consequence, which would scarcely be supportable in other respects in this context. This senate finally also agrees with the appeal court that the absence of an area use plan is not inconsistent with the disputed building plan. Building plans are admittedly in principle to be developed from the area use plan (§ 8 (2) sentence 1 of the BBauG). There is an exception, however, if an area use plan is not necessary because the building plan is sufficient to regulate town planning development (§§ 2 (2), 8 (2) sentence 2 of the BBauG). This is such a case.

The appeal court has correctly endorsed the rejection of the claim at first instance. The defendant's refusal of approval is in correspondence with § 11 sentence 3 in combination with § 6 (2) of the BBauG. The building plan ... violates §1 (4) and (5) BBauG.

It is necessary to proceed on the following basis. Under § 2 (1) of the BBauG "development plans ... are to be drawn up by communities on their own responsibility as soon as and in so far as it is necessary". This provision recognises "sovereign" planning authority for communities, and sovereign planning authority means above all the granting of planning discretion. So far as is evident, this is undisputed. Whether the word "discretion" correctly describes the freedom of formulation summed up in sovereign planning authority may be left undecided. Differences of opinion exist about the (substantive law) concept of discretion. But independently of the answer to this terminologically conceptual question, the following has in any case been established. Firstly, authority in planning matters - here as in other respects - includes, and must include, a more or less extensive margin of appreciation in freedom of formulation, because planning without freedom of formulation would be an inherent contradiction. Secondly, this freedom of formulation in planning matters cannot be attributed to a particular intellectual and psychological event, but it embraces various elements - in particular perception, evaluation, appraisal and intention. Thirdly, in relation to the administrative court control of planning, limitation to whether the statutory boundaries of freedom of formulation have been exceeded in the individual case, or use has been made of the freedom of formulation in a manner which does not correspond with the power inescapably arises (see § 114 of the VwGO (Administrative Courts Order)) from the connection between planning and freedom of formulation. Fourthly and finally, the participation of other authorities in planning in a variety of ways - and as an entirely real participation in the freedom of formulation existing at the time in question - can be provided for, but the participation of the higher administrative authority, regulated by the requirement of approval in § 11 of the BBauG, does not go beyond the authority for and duty of legal control (§ 11 sentence 3 in combination with § 6 (2) of the BBauG).

From this background, it follows in relation to § 1 of the BBauG that the basic rules of development plan formation drawn up there in the first, third, fourth and fifth paragraphs in the form of prerequisites, limits, goals and guiding principles form the basis by which planning discretion is bound. The observance of this is subject to the oversight of the higher administrative authority as well as to the control of the administrative courts.

Under § 1 (1) of the BBauG, development plan formation must serve the town planning development structure. In the context of the present case, it is not necessary to discuss in detail the requirements which follow from this. Nevertheless, it deserves to be underlined that § 1 (1) of the BBauG can only be satisfied if (sufficiently weighty) general interests which are significant in terms of town planning argue in favour of a particular kind of planning. The relationship between § 2 (1) and § 1 of the BBauG would accordingly be misunderstood if it were accepted that the exercise of sovereign planning authority actually needed no justification, but was, so to speak, right and proper for its own sake until the proof of contrary interests. The claimant's submission gives many indications that it overrates its sovereign planning authority even at this point. Its attempt positively to justify the building plan ... on the ground that the plan served the residential needs of the population and promoted home ownership (see § 1 (4) sentence 3 of the BBauG) is certainly not convincing. So far as home ownership is concerned, there is no explanation whatever as to why this goal should need to be promoted in the exact way which the disputed building plan provides. And support for the population's housing needs cannot on the other hand be proved - even subsidiarily - by the fact that interested persons have been found for the building plots within a very short period. The extent to which desire to build is directed towards plots in the outlying area is generally known. No "housing needs for the population" in the sense of § 1 (4) sentence 3 of the BBauG can be derived from this. If it should be correct that, as the appeal court considered as a factor, the claimant has decided "in favour of drawing up a building plan for a piece of land which should only be built on because the owner is interested on economic grounds in the sale of the pieces of land", the consequent violation of § 1 (1) of the BBauG would have excluded the approval of the plan. Whether that is correct may however be left undecided, because refusal of the approval, and therefore at the same time rejection of the claim, are justified independently of § 1 (1) of the BBauG, due to violation of § 1 (4) and (5) of the BBauG.

§ 1 of the BBauG states as follows in its paragraphs 4 and 5:
"Development plans must be guided by the social and cultural needs of the population, its security and health. In this connection, public and private interests must be fairly weighed against and between each other. Development plans should serve the housing needs of the population and promote home ownership.

Development plans must consider the requirements established by the churches and religious corporations under public law for divine service and care of souls, have regard to the needs of the economy, agriculture, support for youth, traffic and defence, and serve the interests of protection of nature and the countryside and the shape of the scenery of the locality and the landscape. Areas used for agriculture should only be designated and claimed for other types of use to the extent that this is necessary".

This regime has been criticised both in its formulation and in its structure ... The senate divides this criticism into the following parts. The alternation on the one hand between "needs", "requirements" and "interests" and on the other hand between "be guided", "serve", "promote", "consider" and "have regard" does not reveal any system from which conclusions could be drawn as to the weight of the individual principles, or as to the (differing) manner in which they are to play a role in planning. It is not apparent why, for example, there is any palpable difference in the development plans having "to consider the requirements for ... care of souls", but "to have regard to the needs ... of support for youth" and finally "to serve the interests of ... protection of the countryside". The same applies for the alternation between the "must" and "should" formulations. The fact, for example, that the development plans merely should serve the housing needs of the population, whilst they must serve the interests of the landscape scenery obviously does not, bearing in mind the general fixing of an aim in § 1 (1) of the BBauG, lead to an order of ranking in which the maintenance of the landscape scenery would in principle take higher status than housing needs. In addition to this, the position of the requirement for balancing in § 1 (4) sentence 2 of the BBauG is misleading. Disregarding the introduction which is linked to the preceding sentence by the words "[i]n this connection", the context shows that the interests listed in the following sentences are to be considered not outside but inside the balancing exercise. In this comprehensiveness, encompassing all the interests which fall to be considered, the requirement for balancing is, as the senate has already stated in its judgment of the 30th April 1969 - BVerwG IV C 6.68 (reference omitted), a principle which is inherent in the nature of planning in a constitutional state, which development plan formation would therefore have to take into account even if § 1 of the BBauG did not expressly provide for it. The importance of the requirement for balancing which is in this respect predominant would stand out more clearly if the Federal Building Act had not regulated this requirement in the fourth paragraph, but as a separate sixth paragraph.

For § 1 (4) and (5) of the BBauG as a whole the following accordingly applies. The goal of regulation of town planning development (§ 1 (1)), which in relation to development plan formation is set above everything else, finds its first and most direct expression in the (chief) guiding principle of paragraph 4 sentence 1 which binds development plan formation to social and cultural needs, as well as security and health of the population. This chief guiding principle is both explained and supplemented by further guiding principles in paragraph 4 sentence 3 and paragraph 5. What is recorded in this way, as objectives of a regulated town planning development then in substance enters the criteria of "public ... interests" in the requirement for balancing. These public interests are to be fairly balanced between each other and besides this against those "private interests" which should be considered in the actual context.

The first question which arises in operating the guiding principles contained in § 1 (4) sentences 1 and 3 and (5) of the BBauG is whether the concepts used there are so-called indefinite legal concepts which in their interpretation as well as their application are subject to unlimited control of not only the superior administrative authority but also of the administrative courts. This must be confirmed. The view of the community carrying out planning functions about eg what appertains to the needs of the economy (§ 1 (5) sentence 1 of the BBauG) and likewise their view that particular planning proposals serve these needs, does not enjoy any sort of priority or protection. There can be no question in this connection of any "assessment discretions" in favour of the community. It can be left undecided whether, as the administrative court considers, constitutional law grounds suggest such a thing (reference omitted). In any case, the contents of the guiding principles do not directly permit a different view. Priority for the community's view and assessment could at the most be taken into consideration in questions which the community carrying out planning functions possessed an exclusive or at least outstanding specialist knowledge to answer which therefore deserved preference. This is entirely lacking in the concepts used in § 1 (4) sentences 1 and 3 and (5) of the BBauG. § 1 (4) and (5) of the BBauG concern objectives which partially, outside of development plan formation, do not even fall within the competence of the community. That does not only apply for "divine service and care of souls", for which statute itself refers to the requirements established by the churches. It applies likewise for example to defence, to protection of nature and the landscape and also, to a substantial extent, for traffic.

Distinct from the interpretation and application of the guiding planning principles is the question of whether the planning in question is based on a just balancing of interests which is not accessible to unlimited control by the supervisory body and by the administrative courts. The words "to balance fairly", which perhaps indicate the opposite, are misleading in so far as they could permit relegation to a background role of the recognition that it is not only a question in this respect of the balancing procedure, but of a determination - which precedes it, and in a certain manner is included in it - of the (relative) weight of the interests to be balanced. This determination is not, or not merely, "an act of evaluative recognition" for which, as the administrative court of Mannheim (loc cit) considers, it should not be permissible to establish "that in accordance with a positive law regime deduced from the provisions of the BBauG it would be arranged as a highly personal power for the decision-making organ of the community exclusively qualified for this purpose by the legislator to make an assessment". This view fails to recognise that planning - apart, for the moment, from the private interests - requires as a rule a settlement or compromise between different public interests; that frequently in the course of planning nothing can be granted to satisfy one need which is not at the same time taken away from another need; and that planning is in its very nature expressed and approved in the decision which is thereby demanded about priorities and what deserves preference. That means that the requirement for fair balancing is violated if a (proper) balancing does not take place at all. It is violated if what must, in the nature of things, be incorporated into the balancing of interests is not incorporated into it. It is also violated if the importance of the private interests affected is not recognised, or if the settlement between the public interests concerned in planning is undertaken in a manner which is out of proportion to the objective weight of individual interests. However, within the framework so drawn, the requirement for balancing is not violated if the community appointed for planning decides in the conflict between different interests to prefer one, and therefore necessarily to defer another. Within that framework, the prioritising and downgrading of certain interests is not a comprehensible event of balancing at all, but a virtually elemental planning decision which expresses how and in what direction a community wants to develop in a well ordered way in town planning matters. Therefore a boundary is necessarily drawn to planning control by the higher administrative authority and by the administrative courts. In this view this senate sees itself confirmed not least by the balancing requirement in § 2 (2) of the ROG (Environmental Planning Act) which is related to § 1 (4) sentence 2 of the BBauG, as Bielenberg in DÖV 1969, 380 correctly emphasises. Under § 2 (2) of the ROG, the principles of environmental planning described in § 2 (1) of the ROG are "to be balanced against each other and between each other in accordance with § 1" by the competent authorities "within the framework of the discretion which they have". That underlines the connection between planning discretion and balancing. This connection also exists in §§ 1f of the BBauG. ...

The application of this view to the present case leads to the consequence that the building plan drawn up by the claimant fails because of § 1 (4) and (5) of the BBauG.

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