Intermediate Storage of Construction Waste – A Guide, NJW-Spezial 2024, 44

With 218.8 million tonnes, mineral construction waste, including excavated soil, was the largest waste category by volume in Germany in 2018. Handling construction waste on construction sites is not only cost-intensive but also carries significant liability risks. If such waste is temporarily stored without the necessary permits, this can result not only in costly construction delays due to corresponding cease-and-desist orders (use prohibitions), but also in criminal consequences. Substantial fines may follow, and in the worst case, even custodial sentences of up to three years.

This article provides an overview of the relevant regulations, the requirements for the permit obligation, and strategies for addressing violations.

Cited, among others, by Schmidt-Kötters/M. Schramm in BeckOK Umweltrecht, Giesberts/Reinhardt, 79th Edition, § 4 BImSchG, para. 38, and Radtke in Münchener Kommentar zum StGB, 5th Edition 2024, para. 37.

Cannabis Law – Is There a Need for Urban Planning Regulation? NJW-Spezial 2023, 620

On 16 August 2023, the Federal Government (Bundesregierung) adopted the draft of an Act on the Controlled Handling of Cannabis and the Amendment of Further Provisions (Entwurf eines Gesetzes zum kontrollierten Umgang mit Cannabis und zur Änderung weiterer Vorschriften). This marks the first step toward reforming what has been described as the „previously failed cannabis policy“ and implements the key issues paper (Eckpunktepapier) of the traffic-light coalition (Ampel-Koalition).

The key points rest on two pillars: enabling private and collective, non-commercial personal cultivation, and a regional pilot project (Modellvorhaben) involving commercial supply chains. Bearing in mind that cannabis sales in Canada have doubled every year since 2018, the question also arises as to where these quantities are to be cultivated.

From the perspective of building and planning law (Bauplanungsrecht), this article provides an overview of the legislative status quo, seeks to clarify questions of permissibility, and is cited by the Hamburg Administrative Court (VG Hamburg), Order of 4 July 2026 – 6 E 4019/26.

Construction Projects with a Federal Connection – Who Is the Correct Defendant?, NJW-Spezial 2023, 300

Regardless of whether the matter concerns the maintenance of barracks (Kasernen) and other military installations or the construction of federal highways (Bundesstraßen), the federal system means that this always involves a constitutionally complex interplay between the Federation (Bund) and the States (Länder) and their respective administrations.

The civil-law component in disputes is, by contrast, less complex. The contractor must direct its claims against the principal/client (Auftraggeber). But who is the principal — the Federation or the State? This article provides an overview of the essential constellations and shows whether the Federation or the States, as the relevant legal entities (Rechtsträger), have proper standing to be sued (passivlegitimiert).

Amendment Permit – Must One Build What Was Approved? NJW-Spezial 2023, 44

The construction of buildings is a complex, time-consuming, and therefore error-prone process. The interlocking of the various services provided by the different parties involved, together with the developer’s changing ideas over the course of construction, frequently result in the finished or still-emerging building not corresponding exactly to the documents submitted to the building supervisory authority (Bauaufsichtsbehörde) as part of the building permit application.

Questions of demarcation in the transitional area between the need for a supplementary/amendment permit (Tekturgenehmigung) and a modification permit (Änderungsgenehmigung) have largely been clarified by legal scholarship and case law. This is not the case, however, with respect to the question of when a Tekturgenehmigung becomes necessary in the first place. This article seeks to answer that question.

Consequences of the Emergency Energy Measures Package for Construction Law, NJW-Spezial 2022, 684

Against the backdrop of the climate crisis and the impact of the war in Ukraine, the German Bundestag adopted the so-called „Easter Package“ (Osterpaket). A central component of this package is the amendment of the Renewable Energy Sources Act (EEG – Erneuerbare-Energien-Gesetz) and the anchoring of the principle that the use of renewable energy is in the overriding public interest (überragendes öffentliches Interesse).

In balancing decisions — for example, whether a permit can be granted for a photovoltaic installation or a wind turbine — the use of renewable energy can now only be outweighed in exceptional cases. This has significant implications above all for permit proceedings in which historic preservation law (Denkmalschutzrecht) and nature conservation law (Naturschutzrecht) play a role.

This article provided an initial overview of the application of Section 2 EEG and was cited by the Higher Administrative Court of Greifswald (OVG Greifswald), Judgment of 7 February 2023 – 5 K 171/22 OVG, in one of the first decisions on this topic.

Discovery of Unexploded Ordnance During Construction Work: Who Bears the Removal Costs?, NJW-Spezial 2022, 428

Regardless of the federal state (Bundesland), structural installations must be erected in such a way that public safety and order are not endangered. This also encompasses the requirement that the building plot be free of unexploded ordnance (Kampfmittelfreiheit). For example, the Ordinance on Unexploded Ordnance (Kampfmittelverordnung) of Schleswig-Holstein expressly obliges developers to obtain the relevant information regarding contamination with unexploded ordnance in „suspected“ areas before commencing excavation/earthworks.

However, with respect to the question of who bears the costs of removal in the event ordnance is found, the state regulations remain silent. This article provides an answer to that question.

Liability of Monument Conservation Authorities for Construction Cost Increase, NJW-Spezial 2022, 44

Historic preservation law (Denkmalschutzrecht) is characterized by undefined legal concepts (unbestimmte Rechtsbegriffe) and a complicated reasonableness test (Zumutbarkeitsprüfung), which opens up considerable room for interpretation in favor of the authorities. For this reason, a successful path to obtaining a demolition permit (Abbruchgenehmigung) often leads through the courts.

Once the affected party has successfully fought for the demolition permit, the question arises as to who bears the damages resulting from the fact that they were unable to build during the course of the proceedings. This article identifies possible bases for such claims (Anspruchsgrundlagen).

The demarcation of the so-called developed area (Innenbereich) under Section 34 of the German Federal Building Code (BauGB) from the outlying area (Außenbereich) under Section 35 BauGB plays a significant role in the practice of building supervisory authorities, administrative courts, and specialist lawyers for administrative law (Fachanwalt für Verwaltungsrecht).

Undeveloped Land and the Development Context, NJW-Spezial 2021, 108

A key criterion in this determination is the contextual built-up area (Bebauungszusammenhang) and the question of whether the project site participates in it. In principle, only developed/built-up areas are relevant for this determination. In exceptional cases, however, undeveloped open spaces (freie Flächen) may also play a role.

This article provides an overview of these special constellations and is also referenced by the Federal Court of Justice (BGH), Judgment of 17 February 2022 – III ZR 46/20.

Historic preservation law (Denkmalschutzrecht) poses a significant hurdle for many building projects involving existing structures. Very strict preservation concepts or restrictions on developability can place narrow limits on planning and construction. Often, an existing building gives no outward indication that it may qualify as a protected monument (Denkmal). Moreover, the states‘ heritage lists (Denkmallisten) are not a reliable basis for determining protected status, given their merely declaratory nature.

Tax advantages or state funding programs generally do not outweigh the burdens that come with owning a protected monument. This article provides an overview of the regulatory structure of historic preservation law, its consequences, and the available means of legal protection (Rechtsschutzmöglichkeiten).