4.1 Introduction

Apart from cross-sectional, comprehensive planning (urban land-use planning, regional planning, state spatial planning), there is sectoral planning for specialised, long-life, and long-term projects. Sectoral planning is concerned with linear planning and certain infrastructural facilities. Nature conservation and landscape planning occupy an ambiguous position. They are both cross-sectional comprehensive plans (landscape programme, landscape outline plans, green structures plans) and sectoral plans (e.g., protection area ordinances).
Sectoral planning is divided into supra-local and local sectoral planning. On the one hand, it deals with linear, cross-community infrastructures, generally at the federal and state levels (e.g., highways, railways, tramways, magnetic levitation railways, airports, mining, waterways, protection areas, tipping sites, and waste incineration plants), and, on the other, with the local level (e.g., roads), where local authorities are responsible for sectoral planning.358
A further distinction is made between privileged and non-privileged sectoral planning. Privileged sectoral planning addresses supra-local projects subject to planning approval or permission. It deals with highways, railways, and magnetic levitation railways, with air transport, telecommunications, energy supply, passenger transport, and experimental facilities for rail-bound transport, waterways and water management, as well as mining projects. Privileged sectoral planning also includes projects for building and operating publicly accessible waste disposal facilities with the participation of the municipality subject to procedures under the Federal Immission Control Act (Bundes-Immissionsschutzgesetz) (Section 38 of the Building Code).
Different planning bodies are responsible for the preparation of formal and strictly binding spatial planning and sectoral planning.359 Because they address the same areas, conflicts can arise. A spatially significant measure or plan governed by sectoral planning law can conflict with the goals, principles, and other requirements laid down in spatial structure plans, as well as the representations of preparatory land-use plans and the specifications of a binding land-use plan.360 Building and spatial planning law offer a range of solutions. The aims of spatial planning set out in spatial structure plans are strictly binding on sectoral planning (Section 4 of the Federal Spatial Planning Act) provided that the specification in question falls within the remit of spatial planning under Section 1 (1) of the Federal Spatial Planning Act and is in the nature of an aim or goal. Local urban land-use planning (preparatory and binding land-use plans) and sectoral planning, in contrast, are on the same hierarchical level. Section 7 of the Building Code provides a solution for the preparatory land-use plan. Public planning agencies involved in preparing the preparatory land-use plan under Sections 4, 13, and 13a of the Building Code are required to adapt their planning proposals to the preparatory land-use plan provided they have not objected to this plan. For the binding land-use plan, Section 38 of the Building Code offers an indirect solution to conflicts in that the provisions relating to the admissibility of projects under Sections 29 to 37 do not apply with respect to privileged sectoral planning.361/362 One solution for planning conflicts is that in some fields sectoral planning can be carried out by means of binding land-use plans instead of planning approval procedure (e.g., Section 17 (3) of the Federal Highways Act).
For certain sectoral plans, a graduated procedure is provided from broad concept planning to specific planning of the measure in question. In these cases sectoral plans for a specific project are then preceded by requirements plans. This is particularly the case with the building of federal highways. The Bundestag adopts a Federal Transport Infrastructure Plan for highway construction pursuant to the Federal Street Building Act.363 This requirements plan justifies investment, which is then no longer subject to judicial review.364 The states, too, can determine their sectoral planning needs in the framework of their overall spatial planning, and, where necessary, concretise them by means of the spatial planning procedure set forth in Section 15 of the Federal Spatial Planning Act or the derogation procedure under Section 11. The same applies with respect to local authorities, which can prepare their local sectoral planning requirements by means of land-use planning.
Comprehensive planning and sectoral planning, despite their differences in content, have much in common, especially procedural and substantive demands on planning governed by law.365
Legislative competence in spatial planning and sectoral planning is dealt with in chapter II.2.1. The Federation has exercised its legislative powers in all fields of sectoral planning. The implementation of sectoral planning in specific projects is entrusted directly to federal higher, intermediate, and lower authorities only in the fields of conventional and magnetic levitation railways (Federal Railways Authority - Eisenbahnbundesamt), waterways and water management (Federal Office for Shipping and Hydrography - Bundesamt für Schifffahrt und Hydrographie), and defence (Federal Defence Administration - Bundeswehrverwaltung). See also chapter II.2.1. In all other fields, sectoral planning is carried out by the states.
In turn, the states transfer some of their sectoral planning powers to lower tiers of state administration and to local authorities. Requirements assessment in the context of comprehensive planning, sectoral requirements planning, and participation by higher federal or state administrative authorities in specific sectoral planning proceedings provides feedback between the tiers involved.

 

 


358 Cf. Runkel, Fachplanungen, raumwirksame, in: Akademie für Raumforschung und Landesplanung (ed.), Handbuch der Raumplanung, 283 f.
359 Cf. Runkel, Fachplanungen, raumwirksame, in: Akademie für Raumforschung und Landesplanung (ed.), Handbuch der Raumplanung, 282.
360 Cf. Runkel, Fachplanungen, raumwirksame, in: Akademie für Raumforschung und Landesplanung (ed.), Handbuch der Raumplanung, 282.
361 Cf. Runkel, in: Fachplanungen, raumwirksame, in: Akademie für Raumforschung und Landesplanung (ed.), Handbuch der Raumplanung, 282.
362 For more detailed treatment see Stüer, Handbuch des Bau- und Planungsrechts, Rn. 2983 ff.
363 Gesetz über den Ausbau der Bundesfernstraßen, 30 June 1971, BGBl. I, 873, amended as promulgated on 20 January 2005, BGBl. I 201, as last amended by Art. 12 of the Act of 09 December 2006, BGBl. I, 2833.
364 On requirement planning see Stüer/Probstfeld, Die Planfeststellung, 84.
365 On the commonalities between building and sectoral planning law see: Stüer/Probst, Die Planfeststellung, 459.