Germany – Response to Case 2010
Infrastructure In Municipalities From A Planning Law Point Of View
Dr.-Ing. Tim Schwarz
Department of Urban and Regional Planning
Local, Regional and Federal State Planning
Technische Universität Berlin Germany
Question 1
Is there legislation concerning highways, streets and railroad, tram and metro transportation lines? What is the procedure in that legislation and does it contain documents as planning tools and what body is responsible for this planning?
The legal bases for traffic planning in Germany are all binding federal and regional laws and regulations and recommended or informal guidelines and recommendations1 . In terms of content, traffic planning in Germany fundamentally covers two legal areas: traffic law and building and planning law 2. Building and planning law at the local level is shaped primarily by the Federal Building Code3 (BauGB). Road traffic law is determined primarily by the Federal Highway Act4 (FStrG) and the traffic laws of the federal states, and contains the legal requirements for planning, building, maintaining and using public roads5 . The General Railway Act6 (AEG) and the Public Transport Act7 (PBefG) are definitive for rail traffic. There are other legal areas that must be taken into account in traffic planning, in addition to building and planning law and traffic law. One such is the Federal Act for the Protection of Nature8(BNatSchG) that, among other things, includes a process to offset interference with nature and the landscape caused by planning of a traffic route. The Federal Control of Clean Air Act 9(BImSchG) and the regulations based on it, in particular in terms of traffic noise, must also be taken into account (16 and 24 BImSchV). An overview of traffic laws for federal highways, roads, railway lines, tramways and underground lines is given below, followed by a discussion of planning tools.
1. Traffic law
a) Federal highways
The federal highways (Bundesfernstraßen) are an interrelated transport network and serve long-range traffic. The Federal Highway Act is the legal basis for planning, building, maintaining and using federal highways; it differentiates between federal motorways (Bundesautobahn) and federal A-roads (Bundesstraßen). Medium-term planning for federal highways is regulated in the Federal Transport Infrastructure Plan (BVWP). This is the German federal government planning tool for spatial traffic sectoral planning across all transport carriers. Based on predicted traffic for a specific scenario, the BVWP is generated by the Federal Ministry of Transport, Building and Urban Development, approved by the federal states and enacted by the federal cabinet. The BVWP classifies urgent action to create new or upgrade federal railway lines, federal highways and federal waterways as “high priority” or “non-urgent”. The administration on behalf of the federal government, e.g. the federal states for the federal highways, may only initiate planning for action classified as high priority.
In general, route determination has to be done for road construction projects included in the requirement plans, in accordance with Section 16 of the Federal Highway Act. Route determination is binding for future planning and is only required for construction of new federal highways. In the event that a pre-existing federal highway is reconstructed in such a way that it departs significantly from the original routing, a new route determination process may be necessary. This is an internal administrative procedure, binding on authorities only, which results in a preliminary policy decision. Determination of the route in principle has priority over local and federal state planning in accordance with Section 16 Para. 3 FStrG.
A planning approval procedure is necessary under Section 17 FStrG, for the construction or alteration of a federal highway. During planning approval, the public and private interests affected by the plan must be considered, including environmental sustainability. Sections 72 to 78 of the Administrative Procedures Act10 apply to the planning approval procedure. In principle, it is the federal state’s obligation to construct the federal highways.
b) Roads
Public roads are divided into the following road categories by their traffic significance:
– State roads (Landesstraßen)
– District roads (Kreisstraßen)
– Municipal roads (Gemeindestraßen)
– Other public roads Within the meaning of the Federal Highway Act, the highest authorities for state roads are each federal ministry responsible for roads. The legal basis of traffic planning for the before mentioned roads is regulated by the federal states in their own road laws. For example, the road law of the federal state of Brandenburg11 (BbgStrG) regulates planning, planning approval and expropriation for road planning in the federal state of Brandenburg. The typical process for approval and authorisation of a public project is the planning approval procedure. In the federal state of Brandenburg12, for example, the regulations of the Administrative Procedures Act for the federal state of Brandenburg apply to the planning approval and plan approval procedure.
c) Railway lines
As for planning the construction of the federal highways network, there is a federal railway requirement plan for railway network construction in Germany. This is enacted as a federal law and is binding for planning approval under Section 1 of the Federal Railway Infrastructure Upgrading Act 13 en 14 . Railway infrastructure, including long-distance power lines, may only be built or altered following prior approval of the plan, in accordance with Section 18 of the General Railway Act (AEG). During planning approval, the public and private interests affected by the plan must be considered, including environmental sustainability (EIA). Sections 72 to 78 of the federal Administrative Procedures Act apply, subject to the General Railway Act. Sectoral planning under railway law is currently only done by Deutsche Bahn AG, a federally owned company.
d) Tramways and underground lines
The Public Transport Act (PBefG) applies to transportation in return for payment or business transportation of persons on trams, trolley buses and motor vehicles. Section 28 PBefG also states that a planning approval procedure is required for tramway infrastructure. During planning approval, as above, the public and private interests affected by the plan must be considered, including environmental sustainability (EIA). The planning agencies in this case are usually the tramway company operators.
2. Planning tools
The planning approval procedure, the plan approval process and the binding land-use plan (replacing planning approval) are planning tools for traffic routes. Planning approval is a sectoral planning instrument which is generally more specific than the binding land-use plan. Planning approval can be completed without submission of detailed designs because of the so-called “concentration effect” and specialisation of the planning approval procedure15 . The aim of the plan approval procedure as an element of the planning approval procedure is to speed up the overall procedure towards final approval. A binding land-use plan, on the other hand, contains legally binding plans for urban planning or the construction on and other exploitation of real estate in a municipality.
a) Planning approval procedure
The planning approval procedure is a project-oriented, formal administrative procedure in which a legally binding decision is made on authorisation of a project. The legislator stipulates a planning approval procedure for construction or fundamental alteration of certain traffic infrastructure (see above). The legal bases for planning approval are the applicable specialised laws, the federal Administrative Procedures Act and the administrative procedures acts of the federal states16 .
A planning approval procedure can be divided into a number of procedural steps. Initially, the project initiator submits a plan to the public department responsible for the consultation procedure. This department obtains responses from applicable authorities and displays the plan publicly. Objections can be raised by any person whose interests are adversely affected by the project. After the deadline for objections has passed, all further objections are ruled out. If an affected party wishes to retain the possibility of asserting ongoing interests, where appropriate, by initiating proceedings before a court to oppose the planning, that party must have expressed his objections during consultation with affected parties within the deadline. After the deadline for objections has passed, the consulting authority must discuss the objections raised in good time with all affected parties. The planning approval authority considers on unresolved objections as part of the assessment and then reaches a decision on the plan. The planning approval decision is delivered to the parties concerned and is made public.
The requirements and conditions for the project are specified in the concluding planning approval decision. The planning approval decision replaces all authorisations, permissions, consents and approvals under other legal regulations – this is known as the “concentration effect”. It is also a requirement for expropriation without which supra-local road or rail traffic routes could often not be constructed. In legal terms, the planning approval decision is an administrative act. An action may be brought against it. If the affected party has no remaining right of appeal, the administrative act becomes final and conclusive and can no longer be contested. The planning approval decision is time-limited. If implementation of the plan has not begun five years after it became incontestable, the plan lapses. For railways, the planning approval decision only lapses after 10 years17 . An extension of the period of validity is possible in all cases.
b) Plan approval procedure
The main aim of plan approval is to speed up the overall procedure. Plan approval is only applicable to route construction projects (road or rail) where it is clear that:
– the rights of other are not or are not significantly impaired
– or the affected parties have declared their agreement in writing to the use of their property or of any other right and
– public agencies whose sphere of competence is affected have been consulted,
– and, in the case of federal highways, railways and tramways, where no environmental impact assessment (EIA) is obligatory.
In general, these are small, spatially limited projects with a clear overall road building objective, or plans for municipal roads on city outskirts. Hence, plan approval, as opposed to planning approval, is conducted in a general administrative procedure without participation of the public. In cases where the rights of third parties are not impaired, the length of the procedure is generally reduced. When plan approval is granted, each affected party concerned must then be informed individually.
c) Binding land-use plan replacing planning approval
Road planning can be done in a binding land-use plan, as well as via the planning approval procedure. A binding land-use plan can replace planning approval in accordance with Section 17 FStrG. In practice, this is frequently applied to built-up inner-city areas where, in addition to zoning under road law, the structural use of neighbouring real estate must be regulated at the same time18 . Planning a federal highway as part of a binding land-use plan outside discrete localities, however, can only be considered where the municipality only affects the municipal area. Road planning affecting areas beyond the municipal boundary cannot be included in a binding land-use plan19 , as the municipal planning authority ends at the municipal boundary. Planning approval can generally only be “replaced” by a binding land-use plan with the agreement of the road construction agency or with its cooperation. When planning federal roads under a binding land-use plan, the municipality is also bound to the planning and route decision of the Federal Minister of Transport. Such a decision is not necessary if the route is shown on the municipality’s preparatory land-use plan and the Federal Ministry of Transport, Building and Urban Development has approved the plan.
In contrast to the ability to replace a road planning approval procedure by a binding land-use plan, under the General Railway Act railway lines cannot be included in a binding land-use plan, as the construction of railways is usually of supra-local significance . It is only possible to replace planning approval for tramways with a binding land-use plan if the tramway affects the local area only21 .
The procedure to create a binding land-use plan is specified in the building code (BauGB). In contrast to the planning approval procedure, the binding land-use plan procedure includes public and official participation at a number of stages. The draft binding land-use plan with explanatory statement and environmental report must be presented publicly during the procedure. In contrast to planning approval, the binding land-use plan procedure has only one very limited preclusion. Obtained opinions can only be discounted if the municipality has not recognised them and would not have had to recognise them and the content of which is of no significance to the lawfulness of the land-use plan. The timely submission of objections is no prerequisite for support of an action in the binding land-use plan procedure. In the binding land-use plan procedure, the municipality must weigh up public and private interests in a fair way22 . Finally, the binding land-use plan is passed by the municipality as a statute and is then valid indefinitely. However, if, when the binding land-use plan is created, it is already known that the plan cannot be realised, it does not fulfil the requirement of necessity under Section 1 Para. 3 BauGB and is therefore automatically void. In the courts, the binding land-use plan, as a statute, can be reviewed as part of judicial review in accordance with Section 47 Para. 1 No. 1 VwGO23 . In contrast to the so-called concentration effect of the planning approval decision, additional legal approvals or exemptions for water use and the protection of nature and the landscape may be required for road planning in a binding land-use plan24 . In addition, the binding land-use plan only specifies the final intended use of an area, but not the implementation of the plan in real terms.
Question 2
How do roads and rails comply with land use planning of a region and of a municipality?
Spatially relevant plans require corresponding planning. A distinction can be made here between sectoral planning and overall planning. Overall planning is a form of interdisciplinary planning that coordinates and integrates the implementation of different sectoral demands on a given area into a single plan or programme. In the case of spatial overall planning, a distinction is made between (supra-local) regional planning and urban land-use planning. Sectoral planning, on the other hand, is planning for spatially significant single projects like airports, railways or motorways. Sectoral plans are approved, prepared and implemented by certain authorities on the basis of specific specialised laws. The most important sectoral planning tool is planning approval, which leads to the binding validation of a plan in a formal administrative procedure. The relationship between supra-local overall planning (regional planning) and sectoral planning, and the relationship between local overall planning (land-use planning) and sectoral planning is discussed below.
1. Relationship between supra-local overall planning (regional planning) and sectoral planning
Regional planning is based on the Federal Regional Planning Act (ROG)25 . Regional planning is supra-local and interdisciplinary (comprehensive) planning to achieve a distribution of areas to meet social, cultural and economic requirements. In the case of federal road planning, there is consultation between the Federal Ministry of Transport, Building and Urban Development and the federal state planning authorities during planning and route planning (Section 16 Para. 1 FStrG). Supra-local overall planning such as federal state and planning for the regions generally integrates disparate traffic planning into its plans and programmes for information purposes only26 . In principle, however, regional planning can include independent plans for transport, whereby route determinations under the Federal Highway Act have fundamental precedence over local and federal state planning27 . If regional planning makes use of the option to carry out own planning, the relevant sectoral planning agencies (e.g. road building authorities) must be involved in the process. Vice versa, regional planning participates in the planning approval procedure for a transport project through the participation of affected public agencies.
2. Relationship between local overall planning (urban land-use planning) and sectoral planning
Urban land-use planning by municipalities is the lower rung of the multi-stage system of spatial overall planning. Urban land-use planning is regulated in the building code (BauGB). In accordance with Section 1 Para. 1 BauGB, the purpose of Urban land-use planning is to prepare and guide the construction and other exploitation of real estate in the municipality. Urban land-use planning itself has two stages and differentiates between the preparatory land-use plan and the final, binding land-use plan. The preparatory land-use plan and binding land-use plan are differentiated in terms of spatial area of application, function, the degree of the substantiation of their content and in their legal status and legal effects. For example, the preparatory land-use plan for the entire municipal area shows intended land use in general. The binding land-use plan, on the other hand, contains legally binding specifications for urban building development in subareas of the municipality.
Urban land-use planning and sectoral planning for transport overlap, as both usually relate to the same planning areas. The preparatory land-use plan can integrate traffic route planning into its own planning for information purposes, but can also make its own development projections. The preparatory land-use plan can include the areas for supra-local transport and for main local communication routes28 . The binding land-use plan can specify public thoroughfares in accordance with Section 9 Para. 1 No. 11. Planning and exploitation regulations can be adopted for information purposes only in accordance with Section 9 Para. 4 BauGB if they are already “approved”, and so are operative and legally binding.
With regard to the relationship between sectoral planning and urban land-use planning, sectoral planning has precedence over communal urban land-use planning regulated in Section 38 BauGB, which stipulates that the planning approval decision for a supra-local project has precedence over urban planning legislation if the municipality has participated and urban building development interests have been taken into account29. Under Section 7 BauGB, sectoral planning agencies (which include the road building authorities) are bound by the contents of the preparatory land-use plan that they have participated in creating if they have not formally objected to it.
Question 3
What is the role of a single municipality and it´s needs in these matters?
As a general principle, under Article 28 Para. 2 GG, the municipalities have the right to regulate all matters relating to the local community, on their own responsibility. This covers urban land-use planning and traffic planning at the local level. For example, a municipality can create a transport development plan for its area that defines the principles and goals for transport development. Partial concepts for individual types of transport can then be developed on this basis, for example, for motorised private transport, local public transport or pedestrian and cycle-route networks. A transport development plan or partial concepts can be implemented via the land development plan by specifying existing and planned local main transport routes. Specific road planning can be done via planning approval or a binding land-use plan. This provides the municipality with the means of implementing its own planning projections.
Planning of traffic routes that have a supra-local function or go beyond the area of the municipality is usually taken away from the municipality and carried out by a sectoral planning agency of the federal state or the federal government. In this case, the role of the municipalities is limited to participation in the planning approval procedure, where their interests must be taken into account.
Furthermore, a municipality may not interfere with the exploitation of a traffic route in land-use planning. The issues around railway zones to be abandoned or no longer used as such in municipal areas are of interest in this regard. As long as the land is formally in use (administrative act), the intended purpose under railway law is binding. In such a case, the municipality may carry out planning for subsequent use, but may not bring such planning into force, which can only be done after a formal dezoning of the railway zone (which annuls the intended purpose under railway law).
Question 4
How is public participation organized?
Public participation in the planning approval procedure is outlined below. It is the most important tool for transport project planning.
During public participation in the planning approval procedure, the application documents are displayed publicly and their availability is also publicised. The aim of participation by the public and the authorities is to put the approval authority in a position to be able to consider affected interests early and to assess them properly. During the participation process, any person affected by the planned project can raise objections. The content of objections is not limited in scope. All private and public interests can be asserted against the planning in the objection process. Each objection should include two elements:
– the personal rights and interests affected and
– the arguments against the project. It must be clear to the authority from the objections what personal rights and interests of the objector are affected and what impairments he fears. This applies in particular to the risk of loss of livelihood, e.g. for farms or businesses. The objections must be specific so that the authority can recognise in what way it should submit certain interests to greater scrutiny.
1. Interested parties
a) Objections by private parties
“Private” parties are not included in the process by letter, but via the presentation of the plans in the relevant municipality and the corresponding public announcement. This means that every individual can review the plan documents to see if he is affected. Any person who owns property in the municipality not occupied by him, but that is to be expropriated for the project, shall receive a letter from the municipality detailing the project, sent at the request of the consulting authority. In such a case, the owner of the property must then himself ensure that he obtains detailed knowledge of the project by inspecting the documents or authorising a third party to do so.
An affected private party can raise objections and thus participate in the process. At this point, this is not yet an appeal procedure. Legal remedies are only available against the planning approval decision itself, against which an action may be brought before the administrative court 30.
b) Objections by municipalities
A municipality cannot invoke violation of the rights of the members of its community, as only the violation of own subjective rights can be asserted. The municipality itself cannot appeal to the fundamental right to property under Article 14 of the Basic Law (GG), as this only applies in favour of private persons, not in favour of a statutory body under public law. Ultimately, municipalities can therefore only invoke violation of their right to communal self-government under Article 28 Para. 2 GG – in particular violation of their planning authority – to oppose sectoral planning damaging to themselves.
c) Public agencies
Public agencies receive plan documents with a request to submit an opinion within 3 months. The opinions pit the public interests the agencies must advocate against the plan itself.
2. Preclusion
The deadline for withdrawing public display of the plan documents creates a substantive preclusion. Objections that are submitted after the limitation period are not taken into account by the approval authority and a third party action for annulment cannot be based on them. The purpose of the administrative preclusion is to speed up and concentrate the administrative procedure and to create legal certainty once a decision has been made.
The preclusion may apply to different legal positions and stages of the process. Distinction should be drawn between:
a) Formal preclusion
Formal preclusion is when objections raised late need not be taken into account in the ongoing process. Formal preclusion is the mildest form, but in practice is rarely encountered.
b) Substantive preclusion
Substantive preclusion is when objections raised late cannot be substantively asserted in the ongoing process (objection and legal proceedings). Objections against the plan that are not raised in a timely manner in the process are excluded after the deadline for objections has passed; this is regulated in Section 17 Para. 4 No. 1 FStrG for planning approval procedures under highway law, and in Section 20 Para. 2 No. 1 AEG for procedures under railway law.
Objections raised after the deadline are therefore marked as “substantively precluded”, i.e. as excluded, and cannot be asserted at a later date. Owing to this exclusion of late objections, only a person who has raised objections before the deadline and in proper form can initiate a legal action against the subsequent planning approval decision. This also applies to affected municipalities. Substantive preclusion also applies to anyone whose own rights are violated. An affected owner of property can no longer appeal against expropriation if he has missed the deadline for objections.
Footnotes:
1. Korda (Hrsg.), Städtebau, 2. Auflage, Stuttgart 2005, S. 249.
2. Korda (Hrsg.), Städtebau, 2. Auflage, Stuttgart 2005, S. 249.
3. Baugesetzbuch (BauGB), neugefasst durch Bek. v. 23.9.2004 (BGBl. I S. 2414), zuletzt geändert durch Art. 4 G v. 31.7. (BGBl. I, S. 2585).
4. Bundesfernstraßengesetz, neugefasst durch Bek. v. 28.6.2007 (BGBl. I S. 1206); zuletzt geändert durch Art. 6 G v. 31.7.2009 (BGBl. I S. 2585).
5. Steierwald/Künne/Vogt (Hrsg.), Stadtverkehrsplanung, 2. Auflage, Heidelberg 2005, S. 798.
6. Allgemeines Eisenbahngesetz (AEG), zuletzt geändert durch Art. 7 G v. 29.7.2009 (BGBl. I S. 2542).
7 . Personenbeförderungsgesetz (PBefG), neugefasst durch Bek. v. 8. 8.1990 (BGBl. I S. 1690), zuletzt geändert durch Art. 4 Abs. 21 G v. 29.7.2009 (BGBl. I S. 2258).
8. Gesetz über Naturschutz und Landschaftspflege (Bundesnaturschutzgesetz – BNatSchG), vom 29.7.2009 (BGBl. I S. 2542).
9. Gesetz zum Schutz vor schädlichen Umwelteinwirkungen durch Luftverunreinigungen, Geräusche, Erschütterungen und ähnliche Vorgänge (Bundes-Immissionsschutzgesetz – BImSchG), in der Fassung der Bekanntmachung vom 26.9.2002 (BGBl. I S. 3830), zuletzt geändert durch Art. 2 RechtsbereinigungsG Umwelt v. 11.8.2009 (BGBl. I S. 2723).
10. Verwaltungsverfahrensgesetz (VwVfG), neugefasst durch Bek. v. 23.1.2003 (BGBl. I S. 102), zuletzt geändert durch Art. 2 Abs. 1 G v. 14.8.2009 (BGBl. I S. 2827).
11. Brandenburgisches Straßengesetz (BbgStrG), vom 8.7.2009, (GVBl. I 2009, 358), zuletzt geändert durch G v. 13.4.2010 (GVBl. I Nr. 17).
12. Verwaltungsverfahrensgesetz für das Land Brandenburg (VwVfGBbg), vom 7.7.2009 (GVBl. 2009, 262).
13. Gesetz über den Ausbau der Schienenwege des Bundes (Bundesschienenwegeausbaugesetz), vom 15.11.1993 (BGBl I S. 1874), zuletzt geändert durch Art. 309 V v. 31.10.2006 (BGBl. I S.2407).
14. Stüer, Handbuch des Bau- und Fachplanungsrecht, 4. Auflage, München 2009, S. 1143.
15. Steierwald/Künne/Vogt (Hrsg.), Stadtverkehrsplanung, 2. Auflage, Heidelberg 2005, S. 800.
16. Steierwald/Künne/Vogt (Hrsg.), Stadtverkehrsplanung, 2. Auflage, Heidelberg 2005, S. 804.
17. Vgl. § 18c AEG.
18. Stüer, Handbuch des Bau- und Fachplanungsrecht, 4. Auflage, München 2009, S. 1102.
19. Stüer, Handbuch des Bau- und Fachplanungsrecht, 4. Auflage, München 2009, S. 1102.
20. Stüer, Handbuch des Bau- und Fachplanungsrecht, 4. Auflage, München 2009, S. 1152.
21. § 28 Abs.3 PBefG.
22. Vgl. § 1 Abs. 7 BauGB.
23. Verwaltungsgerichtsordnung in der Fassung der Bekanntmachung vom 19.3.1991 (BGBl. I S. 686), zuletzt geändert durch Artikel 3 G v. 21.8.2009 (BGBl. I S. 2870).
24. Steierwald/Künne/Vogt (Hrsg.), Stadtverkehrsplanung, 2. Auflage, Heidelberg 2005, S. 805.
25. Raumordnungsgesetz (ROG), vom 22.12.2008 (BGBl. I S. 2986), zuletzt geändert durch Art. 9 G v. 31.7.2009 (BGBl. I S. 2585).
26. Bundesministerium für Verkehr,Bau und Stadtentwicklung (Hrsg.), Festlegungen zum Verkehr in Regionalplänen, Bonn 2007, S. 6.
27. § 16 Abs. 3 FStrG.
28. § 5 Abs. 2 Nr. 3 BauGB.
29. Stüer, Handbuch des Bau- und Fachplanungsrecht, 4. Auflage, München 2009, S. 1095.
30. Bezirksregierung Köln, http://www.bezreg-koeln.nrw.de/brk_internet/organisation/abteilung02/dezernat_25/planfeststellung/merkblatt_planfeststellung/, Zugriff am 22.07.2010.