Judicial Shift: New Perspectives Through Federal Administrative Court Decision on Berlin's Land Use Plan
Everyone knows: Berlin needs more housing, and that can only be achieved if available spaces are better utilized. A significant obstacle has now been overcome at the Federal Administrative Court, which has resolved a dispute between instances. According to the real estate law firm Seldeneck and Partner in Berlin, the decision provides welcome clarity on how to determine the obsolescence of Berlin's land use plan. This offers new opportunities for approval processes.
Background: The current land use plan still prescribes a floor area ratio (FAR) of 1.5 for large areas of the western part of the city at the highest construction level (V/3). Already in 2020, the Second Senate of the Higher Administrative Court of Berlin-Brandenburg decided that this regulation could no longer be applied to certain areas and properties.
This has significant implications, according to attorney Axel Dyroff from Seldeneck and Partner: "If the usage measurements are obsolete, a building application will be assessed under § 34 of the Building Code (BauGB) and it will depend solely on whether the building project fits into the local surroundings." This could positively impact new constructions, but also additions or conversions of attic spaces.
This positive development was temporarily slowed by a contrary ruling from the Tenth Senate of the Higher Administrative Court in 2023, which stated that the FAR could not generally become obsolete, as this would not be sufficiently "obvious" to an "average citizen." Here, the Federal Administrative Court has now made a definitive ruling, clarifying that it depends not on the perspective of an "average citizen" but on a viewpoint "shaped by specialized expertise." This aligns with the approach of the Second Senate of the Higher Administrative Court and significantly lowers the threshold for determining obsolescence.
Furthermore, the Federal Administrative Court clarified that the assessment must consider not just a specific building block but a larger area. This also supports the perspective of the Second Senate of the Higher Administrative Court. It remains to be clarified from which perspective the obsolescence of a specific property will be determined. Overall, the current decision by the Federal Administrative Court may signal the medium-term end of the land use plan.
For further information on this topic, please visit the website of Seldeneck & Partner.