The Higher Administrative Court of Berlin-Brandenburg has declared the expansion of a neighborhood preservation ordinance in the Friedrichshain-Kreuzberg district invalid because the district failed to provide plausible evidence that the legal requirements for expanding the preservation area had been met. Two conflicting expert opinions from 2015 and 2019 would have required a particularly thorough justification, which the district office failed to provide. The decision highlights the strict requirements that must be met regarding the data basis for a preservation ordinance under Section 172 of the German Building Code (BauGB). The expansion of the area was revoked.
What was the case about?
The Friedrichshain-Kreuzberg district sought to expand the geographical scope of its preservation ordinance “M…” to include the so-called Block 7…. This block comprises 640 apartments with 1,017 residents (as of 2019); 80 percent of the buildings are historic, and most of the block is designated as a historic preservation district. Two residential complexes within the block—the church-owned St. G… complex with 92 apartments and the Gründerzeit-era W… complex with 210 apartments—are additionally designated as historic sites in their entirety.
The owners of several condominium units in the central section of the W… complex objected to the expansion ordinance announced in late January 2020. Among other things, they argued that the underlying expert reports were contradictory and that the assumed risk of displacement had not been substantiated.
What is environmental protection under Section 172 of the BauGB?
Through a so-called preservation ordinance (in Berlin: regulation) pursuant to Section 172(1), first sentence, No. 2 of the German Building Code (BauGB), a municipality may designate areas in which the demolition, alteration, or change of use of buildings is subject to approval. The goal is to protect the composition of the resident population, for example, from displacement caused by gentrification or the conversion of rental units into condominiums. Under Section 172(4) of the BauGB, approval may only be denied if there are specific urban planning reasons that justify doing so.
What requirements must the municipality demonstrate?
The court summarizes the substantive requirements for such bylaws in four steps (para. 45 of the decision):
First, the municipality must specifically define the composition of the resident population to be protected within the conservation area. Second, the boundaries of the area must be defined in such a way that the protection objective can be achieved in substantial parts of the area. Third, there must be an abstract risk that, without the ordinance, construction measures would lead to an undesirable change in the population structure. Fourth, this change must give rise to concerns about particularly negative urban planning consequences, and the regulation as a whole must be proportionate.
Why did the court overturn the expansion?
The district based its decision on a 2019 expert report that recommended an expansion. Just a few years earlier, in 2015, an expert report by the same firm, commissioned by the same district, had explicitly advised against an expansion. The court clarifies: If a current expert report contradicts a previous expert report, it must specifically address the conflicting statements in the earlier report and refute them conclusively.
That is precisely what did not happen here. Several key assumptions in the 2019 expert report did not hold up to the court’s scrutiny:
Energy-Efficiency Improvement Potential: The 2019 report assumed a “high to very high” potential for energy-efficiency renovations because over 90 percent of the apartments lacked exterior wall insulation. However, the preliminary report from 2015 had plausibly explained that, due to the comprehensive historic preservation status of Block 7… thermal insulation measures on the facades were only possible to a limited extent. The new report did not resolve this contradiction.
Ownership Structure: The 2019 report assumed that only a small portion of the apartments were protected by social housing organizations such as cooperatives or church-affiliated owners. However, this failed to take into account that the St. G… complex, with its 92 apartments—about 15 percent of the entire block—is owned by a church-affiliated organization, which allocates the apartments according to its own socially oriented criteria.
Implications for social infrastructure: Both the expert opinion and the explanatory memorandum to the ordinance contained an internal contradiction: in one passage, there was mention of increasing demand pressure on social infrastructure “in the area,” while in another, there was reference to a looming underutilization “in the broader regional context.” The court ruled that this contradiction could not be resolved and rendered the forecast implausible as a whole.
Geographical Scope: The decision to include the entire Block 7… rather than just certain sections was also based on the same inadequately clarified facts regarding historic preservation and ownership structure.
What are the implications of this for the regulation as a whole?
The court characterized these deficiencies as so-called errors in balancing interests, which, under Section 214(3), second sentence, of the BauGB, are only relevant if they are obvious and could have affected the outcome. The Senate affirmed both points: The errors could be directly inferred from the expert reports and the explanatory memorandum to the ordinance, and it was possible that, without the errors, the expansion would have been approved differently or not at all.
The petitioners had also raised these defects with the district office within the prescribed one-year period following the publication of the ordinance, as required by § 215(1), sentence 1, no. 3 of the BauGB. In the court’s view, the notice regarding legal remedies contained in the ordinance also failed to meet the requirements of Section 215(2) of the BauGB, meaning that even late objections would not have been deemed irrelevant.
Because the deficiencies were not limited to individual sections of the block, the court declared the expansion ordinance invalid in its entirety and revoked the environmental protection status for this area.
What does the ruling mean in practice?
The decision demonstrates that the scope of social preservation ordinances is subject to judicial review. In our view, the ruling is likely to be particularly relevant in cases involving conflicting expert opinions or unclear data regarding ownership structure and historic preservation. Anyone affected by a preservation ordinance should carefully review the underlying expert reports and the ordinance’s explanatory statement and raise any objections to the competent authority within the prescribed time limit.
Source: Higher Administrative Court of Berlin-Brandenburg, Judgment of May 23, 2024, Case No.: OVG 10 A 14/20
Jochen Mittenzwey
Attorney
Certified Specialist in Construction and Architectural Law
mittenzwey@mo45.de
