2.1 Legislative Powers and the Statutory Framework at the Various Levels of Planning

A distinction is drawn in spatial planning between comprehensive spatial planning and sectoral planning. Comprehensive spatial planning is cross-sectional at all planning levels, whereas sectoral planning addresses single, mostly technical infrastructure sectors, dealing with specific projects like railways, airports, and waterways.246
The Federation and the states have made use of their respective legislative powers to regulate comprehensive spatial planning and sectoral planning. In 2006, the legislative competencies of the Federation and the states were reorganised under the so-called "federalism reform." For details see chapter I.2.2.1.
Since the abolition of framework legislation, the Basic Law now provides for exclusive legislative powers of the Federation and concurrent legislative powers.
Exclusive legislative powers are vested in the Federation for the fields enumerated in Article 73 nos. 1 to 14 of the Basic Law. In sectoral planning law they include air traffic (no. 6); the operation of railways wholly or predominantly owned by the Federation (federal railways), the construction, maintenance, and operation of tracks belonging to federal railways, as well as the imposition of charges for the use of such tracks (no. 6a); postal and telecommunication services (no. 7); the production and utilisation of nuclear energy for peaceful purposes, the construction and operation of facilities serving such purposes, protection against hazards arising from the release of nuclear energy or from ionizing radiation, and the disposal of radioactive substances (no. 14).
Under Article 72 (1) of the Basic Law, the states have power to legislate on matters falling under concurrent legislative competence, so long as and to the extent that the Federation has not exercised its legislative power by enacting laws. Under Article 72 (2) of the Basic Law as amended, the Federation has the right to legislate on these matters if and to the extent that the establishment of equal living conditions throughout the federal territory or the maintenance of legal or economic unity renders federal regulation necessary in the national interest. The proof required under Article 72 (2) of the Basic Law as amended must be furnished for the matters listed. If the Federation exercises its right of concurrent legislation, the states may legislate for deviating arrangements in the areas listed in Article 72 (3) nos 1 to 6).
The areas enumerated in Article 74 nos. 1 to 33 fall under concurrent legislation. In the field of spatial and sectoral planning, they include: mining (no. 11); the law regarding expropriation, to the extent relevant to matters enumerated in Articles 73 and 74 (no. 14); the promotion of agricultural production and forestry (with the exception of the law relating to land reallocation), preservation of the coasts (no. 17); real property transactions, land law (except for laws respecting development fees), the law relating to housing benefit, the regulation of assistance with old debt, miners' housing construction law and miners settlement law (no. 18); road traffic, motor transport, construction and maintenance of trunk roads, as well as the collection of tolls for the use of public highways by vehicles and the allocation of the revenue (no. 22); non-federal railways, except mountain railways (no. 23); waste disposal, air pollution, and noise abatement (except for protection against behaviour-related noise) (no. 24); land distribution (no. 30); spatial planning (no. 31); and water resources (no. 32). All areas of law not enumerated in Article 72 or 74 of the Basic Law fall within the legislative remit of the states. Among the most important competencies of the states is the law relating to culture (e.g., conservation of historic monuments) and regulatory law (e.g., building control law, police law).247
Certain areas in spatial planning have been affected by the abolition of framework legislation (Article 75 of the Basic Law as amended), like the law relating to comprehensive spatial planning and nature conservation. Where areas are transferred to the legislative remit of the Federation or to concurrent legislation, former framework law, including the legislative powers and obligations of the states it contains, persists as federal law (Article 125b (1) of the Basic Law). Even after the federalism reform has come into force, the states are entitled and obliged to regulate matters as required under the old framework legislation until such time as the Federation makes use of its new legislative powers.248

Implementation of planning law by local authorities
Under Article 28 (2) of the Basic Law, local authorities have the right to regulate all the affairs of the local community on their own responsibility within the limits set by law. Within the limits of their statutory functions, associations of municipalities also have the right of self-government according to the law. Local self-government finds expression in personal sovereignty, financial autonomy, organisational autonomy, fiscal jurisdiction, and planning autonomy. Planning autonomy means having political and administrative freedom to decide on the uses to which land in the territory of the municipality is to be put without all-embracing and strict control by higher tiers of government, and to develop the planning guidelines needed to realise the potential for autonomous action without imperative governmental influence being exerted.249 For this purpose, local authorities use the tools of planning law (urban development law).

structure of the german Planning Law

Figure: Structure of the Planning Law 250

Urban development law:
Planning autonomy includes the power of local authorities under the Building Code to prepare urban land-use plans on their own responsibility. In the Building Code and secondary legislation (Land Utilisation Ordinance, Plan Notation Ordinance, Valuation Ordinance) for the implementation of the code, the Federal Government has provided local authorities with the legal basis for controlling the use of land. On the basis of the Building Code, local authorities can adopt binding land-use plans in the form of bye-laws. However, municipalities are required to adapt their plans to the aims of (federal and state) spatial planning. This means, in effect, that federal and state spatial planning goals are to be implemented. At the same time, their constitutional guarantee of self-government gives local authorities the right to participate in planning and measures carried out by federal and state government departments. Such participatory rights are recognised for all government planning and measures that can affect municipal planning and other autonomous functions. Participation in this sense refers to the right to be informed and heard.251

Building control law (building regulations):
Building control law or building regulations deal with specific physical structures and buildings. Material building control law serves to avert dangers, to prevent unsightly development, and ensure the observance of social and ecological standards for healthy housing and working conditions. Formal building control law regulates building supervisory procedures and hence the enforcement of planning law with regard to the authorisation of projects, the enforcement of material building law, and the enforcement of related legislation pertaining to roads, water, landscape conservation, and the conservation of historic monuments.252 Planning approval and permission procedures thus couple urban development law with building control law.253 On the basis of state building regulations, municipalities and counties examine the permissibility of building projects and authorise them by administrative act. State building regulations empower local authorities to prepare local building regulations.

Overview: Local Authority Powers 

Competence of local authorities

Preparation and updating

Binding effect

Judicial review

Preparatory land-use plan

Necessity under Section 1 (3) of the Building Code

Planning horizon ca 15 yrs

Binding on public authorities

Concrete judicial review by administrative court

Binding land-use plan

Necessity under Section 1 (3) of the Building Code

Municipal statute, bye-law

Judicial review by higher administrative courts and concrete review by administrative court

Other statutes pursuant to the Building Code

Discretionary (e.g., statutes under Section 34 of the Building Code or mandatory (e.g., land improvement charges bye-law)

Municipal statute, bye-law

Judicial review by higher administrative courts and concrete review by administrative court



 


246 On the relationship between urban land-use planning and comprehensive spatial and sectoral planning see: Erbguth, Bauplanungsrecht, Verlag C.H. Beck München 1989, 26 ff.
247 Cf. Schmidt-Eichstaedt, Städtebaurecht, 11 f.
248 Cf. Bericht über die Auswirkungen der Föderalismusreform auf die Vorbereitung von Gesetzentwürfen der Bundesregierung und das Gesetzgebungsverfahren, BR-Drs. 651/06, 3.
249 Cf. Stüer, Bauleitplanung, Rn. 18.
250 Own illustration.
251 For details see Stüer, Bauleitplanung, Rn. 20 ff.
252 Cf. Hoppe/Bönke/Grotefels, Öffentliches Baurecht, § 1 Rn. 7.
253 Hoppe/Bönker/Grotefels, Öffentliches Baurecht, § 1 Rn. 7.