Any building project will necessarily include an in-depth analysis of the catchment area in terms of whether it can technically be used for the planned project and is well-suited for it. Aside from the usual limitiations which follow from the binding land use plan, one frequently encounters restrictions in the form of various protective zones. The impact of such zones on your building project should be investigated early on, during the project preparation stage.
Any building project will necessarily include an in-depth analysis of the catchment area in terms of whether it can technically be used for the planned project and is well-suited for it. Aside from the usual limitations which follow from the binding land use plan, such as permissible height, dimensions, number of floors, or purpose of use of the planned building, one frequently encounters restrictions in the form of various protective zones which have been declared in the target area or have come into existence along with a building by force of law.
What are protective zones? They represent a certain part of land close to a concrete protected building or area on which certain activities may only be carried out to a limited extent, or have been outright prohibited, even if the activity in question is otherwise permitted in the general vicinity. In practice, most protective zones come into existence based on a law along with the building which they are designed to protect – i.e., typically, protective zones along or around transport infrastructure or technical infrastructure. Owners of affected land or buildings may contest such protective zones in the zoning proceedings or building permission proceedings for the building with which the creation of the zone is associated.
A second group of protective zones comes into existence by force of an administrative act by the competent administrative authority; these zones pertain to a specific protected building or site, such as airfields, military installations, monument protection zones, headwaters, etc. These days, such protective zones are usually declared in the form of what is known as a “measure of general character” within the meaning of Sec. 171 et seq. of the Code of Administrative Procedure, by public display on the bulletin board of the municipality within whose district the measure is being implemented. In such a case, owners of affected land or buildings may defend themselves against the creation of the protective zone either within the proceedings on the passage of a measure of general character (by filing objections or a brief seeking modifications) or, if the protective zone has already been declared, by seeking to initiate a review procedure before the superior administrative authority or by bringing administrative action in the competent district court. A special form of defense is known as incidental review: Here, the owner seeks the abolition of the measure of general character (or parts thereof) as part of an administrative action which is primarily aimed against the administrative decision issued based on that measure (for instance, administrative action against the decision whereby the building office dismissed the motion for issuance of a zoning permit).
Aside from protective zones, one may in practice run also into other restrictions with fundamental consequences for planned building projects. Pursuant to Sec. 175 of the Building Act, the Ministry of Defense and the Ministry of the Interior may in the interest of national defense and state security define certain ‘catchment areas’ within which zoning and building permits for building projects are always subject to binding approval by these ministries; moreover, they may require that certain structural modifications be made to existing buildings as they deem necessary. Given that the law is silent as to the specific form in which such catchment areas are to be defined, we find that they are in practice being declared informally, without the knowledge of owners of property inside such areas. We believe this practice is unlawful. In substantive terms, defining a catchment area within the meaning of Sec. 175 of the Building Act shares defining characteristics with the above-described institution of the “measure of general character”; because of this, the settled case law of the administrative courts (which has been upheld by the Constitutional Court) requires that the catchment area be defined also in this case by promulgating such a measure, so as to protect the legitimate interests of the owners of affected land plots and buildings.
It is highly advisable to investigate the existence of protective zones and defined catchment areas as a part of the preparatory works on any building project, ideally by discussing the project with the relevant public authorities and with the operators or owners of transportation infrastructure and other infrastructure within the target area. Principally, protective zones, defined catchment areas, and the limitations and restrictions to which they give rise should also follow from the current zoning plan and the analytical land-use documents which have been drafted for the area in question (and which are subject to regular updates).