II. PLANNING CONTENT AND PROCESS ACCORDING TO THE VALID ACT

III. CURRENT SITUATION AND MAIN PROBLEMS IN PLANNING

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The outstanding feature of the decentralised German planning system is the fact that the Federation itself has no comprehensive and legal binding spatial planning instrument. So Germany has no national plan at its disposal, but in its place the established by the Federation principles of the Raumordnung which are the fundamental guidelines for the whole spatial planning and spatial policy in Germany. By the new Raumordnungsgesetz the Federation is authorised to draw up leading concepts (Leitbilder) of the spatial development in co-operation with the federal states. This is a new informal planning instrument on the national level.

Legal planning instruments are reserved for the federal states. Only the federal states are obliged to draw up comprehensive plans and to determine objectives of the Raumordnung which are binding for all subordinate planning authorities (municipalities and sectoral planning authorities). With the exception of the Saarland and the three city-states (Berlin, Bremen, Hamburg), all the federal states have set up their independent regional planning for parts of their territory (regions) on the basis of the Raumordnungsgesetz and their own Landesplanungsgesetze. Regional planning has the task of putting the Raumordnungsplan of the relevant land into concrete terms at the level of each individual region.

Regional Plans

Regional plans should contain specifications concerning the spatial structure, especially with respect to

1. spatial order categories,
2. central places,
3. special community functions such as growth points and overspill towns,
4. settlement developments,
5. development axes,

1. inter-regionally significant open spaces and their protection,
2. uses of open space, such as sites designated to safeguard supplies of and systematically search for and extract location-specific raw materials,
3. re-development and development of spatial functions,

1. traffic infrastructure and installations for transfer of goods,
2. public utility and waste disposal infrastructure.

Regional plans should also contain those stipulations concerning regionally significant plans and measures of public authorities and legal persons and entities under private law that are eligible for incorporation into regional plans and required for co-ordinating claims on land and can be safeguarded by way of objectives or principles of regional planning.

The stipulations may also refer to areas

1. scheduled for certain regionally significant functions or uses, thus excluding other regionally significant uses in this area, provided these are inconsistent with the priority functions, uses or objectives of regional planning (priority areas),
2. where special importance is attached to certain regionally significant functions or uses when balanced with competing regionally significant uses (reserve areas),
3. suitable for certain regionally significant measures which are to be assessed within the scope of urban development in accordance with section 35 of the Federal Building Code and are prohibited in another location in the planning area (suitability areas).

With the FRPA the federal states are authorised to develop and to apply the so-called regional land-use plans for suburban zones. This new planning instrument combines regional planning and urban land-use planning in one unified planning tier.

Urban Land-use Plans

In accordance with the Federal Building Code the municipalities are responsible for the two-phase urban land-use planning (Bauleitplanung).

The preparatory land-use plan (Flaechennutzungsplan) includes the entire municipal territory. The preparatory land-use plan determines the main features of the different kinds of land-use on the basis of the intended urban development and of the predictable need of the municipality. In accordance with FBC there are several possible representations within a preparatory land-use plan, e. g. spaces earmarked for development, for transport, for public infrastructure, green spaces, agricultural land and woodland, spaces for the protection, preservation and development of the natural environment and the landscape.

In addition to the above-described representations the preparatory land-use plan shall mark

1. spaces which, when built upon, will require special physical provisions to counter external forces, or for which special physical safeguarding measures are required as protection against the elements;
2. spaces which have mining below the surface, or which have been designated for extraction of minerals;
3. spaces designated for building where the ground has been severely contaminated by hazardous materials.

Any plans or other arrangements for use which have been determined under other statutory provisions (sectoral planning codes), and any assemblies of physical structures protected as monuments under federal state law are to be included as a matter of time.

The legally binding land-use plan (Bebauungsplan) makes legally binding designations on types of land-use permissible in respect to plots within the planning area. Legally binding land-use plans must be prepared in compliance with the FBC as soon as and to the extent that these are required for urban development and regional policy planning. Therefore, a municipality is under no legal duty to produce these plans for the entire municipal territory. For parts of the territory without a legally binding land use plan Sections 34 and 35 of the FBC are valid.

The FBC provides a catalogue of possible designations for a legally binding land-use plan e. g.

• the type and the degree of building and land use;
• the coverage type, plot areas which may or may not to be built on and the location of physical structures;
• designations relating to common facilities and public infrastructure;
• designations on green areas and open space areas and relating to conservation.

A special project-based legally binding land-use plan (Vorhabenbezogener Bebauungsplan) can determine the admissibility of a development project if on the basis of an implementation plan for the project and the associated infrastructure (the project and infrastructure plan), drawn up in consultation with the municipality, it is evident that the project developer is prepared and in a position to enter into an obligation prior to a resolution to adopt a binding land-use plan pursuant of the FBC, committing him to implement the project within a fixed time-limit and to bear either wholly or in part the costs of planning and of the provision of public infrastructure (the implementation contract).

On the basis of the FBC a development project within built-up areas without a legally binding land-use plan is only permissible where, in terms of the type and scale of use for building, the coverage type and the plot area to be built on, the building proposal blends with the characteristic features of its immediate environment and provision of local public infrastructure has been secured. The requirements of healthy living and working conditions must be satisfied; the overall appearance of the locality may not be impaired. A binding land-use plan is in those areas no prerequisite for a building permission and the content of the preparatory land-use plan is not relevant.

The federal states are obliged to set up comprehensive, superordinated plans for their territory (Raumordnungsplaene) and for their regions (Regionalplaene). This applies also to the local land-use plans of the municipalities (Bauleitplaene).

There are no deadlines for all these plans in the German planning law.

It is not required to produce a local land-use plan for choosing the location of a nuclear power station or another project of public interest, because those projects are not under the responsibility of the local land-use planning, but under the responsibility of special sectoral planning authorities with their own sectoral planning acts, e. g. the Atomic Energy Act (Atomanlagengesetz). These planning authorities must involve the municipality as one of a lot of planning authorities and consider the concerns of urban development as one of several public interests.

On the basis of the Raumordnungsgesetz and the Landesplanungsgesetze the federal states are authorised to influence the municipal urban planning and the sectoral planning authorities like transport planning or water resource planning by giving orders to produce or to alter the plan for adapting their projects and plans in concord with the objectives of the Raumordnung. In principle, each building activity and each change of land-use requires relevant planning. Different authorities in the federal states and in the municipalities have the right and the obligation to initiate the legally stipulated planning.

With regard to the clients, the producers and the financiers there is a need to distinguish between the Raumordnungsplaenen and Regionalplaenen of the federal states on the one hand and the Bauleitplaene of the municipalities on the other hand.

The clients of the Raumordnungsplane and Regionalplaene are the public planning authorities - especially the municipalities - which are being obliged to observe the objectives of the Raumordnung in all spatially significant planning procedures and measures.

The federal states are the producers and financiers of the Raumordnungsplaene. The Regionalplaene will be produced and financed by regional planning associations that are formed by the union of municipalities or by a federal state authority.

The clients of the Bebauungsplaene are public or private entities with their intentions to use land for buildings or for other purposes. Bauleitplaene will be produced and financed in general by the responsible municipalities.

Private persons have the right to finance and produce plans and infrastructure facilities, if the municipality makes an Urban Development Contract on the basis of the FBC with this person or company. In this context it is possible to delegate

1. the preparation and implementation of urban development measures; this shall include reordering plot boundaries, soil remedy and other preparatory measures, and the drawing up of urban development plans; such delegation shall not affect the municipality’s responsibility for the statutory plan adoption procedure;
2. promoting and safeguarding the aims pursued by urban land-use planning, in particular regarding the use of plots, the implementation of counterbalancing measures pursuant of the FBC, supplying the housing needs both of groups within society who experience special problems with regard to housing supply and of the local community;
3. responsibility for the costs and other expenses which the municipality incurs or has incurred in respect of urban development measures and which are either prerequisites or consequences of the proposed development project; this shall include the provision of building plots.

Nevertheless, political decisions about the content of land-use in an area within an urban development contract are incumbent on the town council. The developer is obligated to produce and finance the plan in conformity with the given political aims.

    3. Environmental Impact Assessment (EIA) or Strategic Impact Assessment in the planning process

The basic law for the Environmental Impact Assessment is the European Commission Directive on the Assessment of the Effects of Certain Public and Private Projects on the Environment (Directive 85/337/EEC). Legal basis for Strategic Impact Assessment does not exist.

The EC Directive's transformation at federal level took place as a result of several measures: through the amendment of the Regional Planning Act (1990), and in particular through the passing of a so-called "Article Act" on 12^th of February 1990, the Gesetz zur Umsetzung der Richtlinie des Rates vom 27. Juni 1985 ueber die Umweltvertraeglichkeitspruefung bei bestimmten oeffentlichen und privaten Projekten (85/337/EWG). Article 1 of this Act introduced the core Environmental Impact Assessment Act as an Act in its own right. Articles 2 to 12 of this transformation Act contain important amendments to the "technical" Acts (i.e. the "material" law), e.g. the Federal Emission Control Act, Atomic Energy Act, or Federal Nature Conservation Act, etc., which conform these to fit the aims of the Environmental Impact Assessment Act.

The EIA Act allows the Federal Government to issue Common Administrative Guidelines with the assent of the Federal Council. The Common Administrative Guidelines (which are legally binding only on the licensing authorities) are supposed to ensure that all licensing authorities (and developers) identify, describe and assess the effects on the environment and present them according to common standards.

The EIA provides that the Environmental Impact Assessment is an integral part of those procedures applied by authorities when deciding whether to grant a project approval. The EIA Act, a so-called "core law," contains provisions that must be taken account of when applying the technical Acts. It involves an integral part of those administrative licensing procedures that help to facilitate a decision on the admissibility of any given project. The solution adopted in the legislation has thus decided against a separate procedure to be carried out by a special authority; the licensing authority has also become the authority responsible for administering the Environmental Impact Assessment.

The Environmental Impact Assessment's scope of applicability is defined in the EIA Act and the Appendix pertaining to the EIA Act. An Environmental Impact Assessment is only to be carried out as regards public and private projects that are to be found there. Should the licensing of a project take place over several procedural stages then there is no requirement in the EIA Directive that an Environmental Impact Assessment be conducted during the first stage. It is sufficient that an Environmental Impact Assessment is carried out during the final stage where the conclusive decision on the project is taken. For these conclusive decisions the results of the EIA are only one aspect in the weighing process of all public and private interests. Consequently, an obligation to observe the results of the EIA does not exist.

For the applicability of the EIA in the scope of the FBC, the Code determines: In the course of the weighing process the following matters shall be considered: assessment of the calculated and described impact of a development project on the environment corresponding to the respective stage of planning (environmental impact assessment), to the extent that the admissibility under building and planning law of specific development projects within the sense of the Environmental Impact Assessment Act is to be established by reference to environmental impact assessment.

The following points are the main requirements of the EIA for all planning levels:

1. The procedure normally begins when the licensing authority and the developer discuss the probable scope of examination; other authorities, experts and third parties may also be invited to contribute. The competent authority will then inform the developer on the probable scope of the assessment, as well as on the type and scope of the documents that the developer is to provide.

2. The developer compiles the necessary documentation and presents the results to the licensing authority as a summarised description of the effects on the environment.

3. The competent authority will then ask other authorities to express their opinion, make provisions for public consultation whereby the developer's documents must be made accessible to the public, and will allow the authorities of other countries to participate, should the project have cross-border effects.

4. The competent authority will put together a summarised report on the foreseeable effects of the project on the environment on the basis of the information supplied by the developer, the opinions of the other authorities (both domestic and foreign) and objections made by the public.

5. The competent authority will then assess the effects on the environment on the basis of the summarised description of the effects on the environment. Steps 4 and 5 should normally be contained in a single document, labelled "Environmental Impact Assessment."

6. The assessment must be taken into consideration when deciding whether or not to grant the project approval.

7. The decision and the grounds upon which the decision was taken must be made accessible to those affected by the project as well as those who raised objections; if the competent authority does not grant the project approval, then it must inform persons concerned thereof.

On the level of the Raumordnung und Landesplanung there is no public participation up to now. The new Raumordnungsgesetz authorises the federal states for the first time to engage the public in the process of preparing the Raumordnungsplaene.

For the co-ordination FRPA stated: When preparing regional plans, the principles of regional planning shall be duly weighed and fairly balanced. In doing so, further public and private interests shall be taken into consideration if they can be anticipated at the respective planning level and if they are of sufficient importance.

On the level of the Bauleitplanung an intensive public participation in two phases exists. The first phase of the public participation on the basis of the FBC means early involvement of general public and participation of public agencies and of neighbouring municipalities. In the second phase - formal public participation - the draft plan is placed on public display. Any member of the public is entitled to inspect the plan and to make suggestions or raise objections. The treatment of suggestions and injections during the phase of formal public participation is regulated in detail by the Federal Building Code. So the municipality is obliged to examine carefully all arguments. If the municipality does not accept the arguments behind the suggestions and objections, it is required to submit these to the higher administrative authority.

In addition, the FBC requires participation by Public Agencies. The municipality shall obtain comments and opinions from public authorities and from other public agencies whose activities are affected by the planning measure at the earliest opportunity. Participation may take place simultaneously with the procedure pursuant of the FBC.

The horizontal and vertical co-ordination of draft plans with all public planning agencies is an important element of the German planning system. This means for the Raumordnung particularly the co-ordination with the Federation, the ministries and the municipalities. The Bauleitplanung requires in particular the co-ordination with the neighbouring municipalities and with regional planning.

Formal co-ordination of comprehensive spatial planning and sectoral planning describes the horizontal and vertical procedures for the co-operation of actors in the areas of comprehensive spatial panning and sector planning. The vertical dimension can be defined as the co-ordination between different jurisdictional levels (national, regional, and local) which can be achieved if the superior planning level takes into account the planning objectives of the lower level, which, in turn, has to comply with superior planning. This can be circumscribed as the "principle of countervailing influence". On the horizontal path formal co-ordination describes the co-ordinated action of public, semi-public and private actors at the same administrative level.

Material co-ordination means the co-ordination between different plans with regard to their contents. Horizontal material co-ordination encompasses the integration of the interests and policies of different planning sectors in comprehensive spatial plans, policies and funding programmes, which is necessary for the higher overall efficiency of a single planning sector and for comprehensive spatial planning as a whole. Vertical co-ordination can be described as the degree of conformity of plans or policies between different administrative levels, for example transport plans at the regional and local level.

The process of planning and co-ordinating is characterised in Germany by a permanent stress-situation between the involved participants. The arising conflicts cannot be solved theoretically. Every individual case requires individual handling, sometimes decision-making by the administrative court is a matter of urgent necessity.

The main deciding method is the process of consideration (weighting process) between all interests of public authorities and private persons by the responsible planning authority – for local land-use planning the municipality, for development projects of supra-local significance the responsible sectoral planning authority.

The German planning law contains no statutory regulations for supervision of plans. In this respect the planning law is concentrated on the procedures for giving the plans a binding character.

The procedure for giving the Raumordnungsplaene a binding character is legally the most important act, and it serves to make the objectives of the Raumordnung binding for public planning authorities. This is achieved by means of

• passing of laws
• decisions taken by the governments of the federal states
• official approval/declaration of binding effects/approval by the planning authorities of the federal states.

The procedure ends with publication/official announcement of the measure.

With regard to the Bauleitplanung the procedure begins with the resolution by the municipality on adopting the Bauleitplan (with the legally binding land-use plan this is a resolution to adopt a local statute). Then the Bauleitplan must be submitted by the higher administrative authority acting as the state supervisory authority. The preparatory land use plan requires approval. For legally binding land-use plans which have been developed out of an approved preparatory land-use plan is an extra approval not required. The Bauleitplaene come into force after issue of public notice.

As a general rule, amendments, supplements to and revocation of spatial plans are subject to the same procedural requirements in Germany.

The legal impact of the different spatial plans is the following:

The comprehensive plans of the federal states (Raumordnungsplaene) and their regions (Regionalplaene) are legally binding for all authorities of the Federation, the federal states and the municipalities. This refers to the real contents of these plans, the objectives of the Raumordnung, which have to be observed by public planning authorities in all spatially significant planning procedures and measures.

The preparatory land use plan is the higher level communal master plan for the whole municipal territory. Its prescriptions are binding for the planning authorities, including the municipality itself, by the preparation of legally binding land-use plans. However, outside this area it develops no direct legal effects.

The legally binding land use plan contains the designations to control orderly urban development within a clearly defined part of the territory of municipalities. It is a legal norm that has a statutory form and has to be agreed upon by the municipality. It is therefore binding for everyone. Within the area covered by a binding land use plan, a development project is permissible where it does not contravene these designations and provision of local public infrastructure has been secured.

    9. Compensation for damage caused by planning restrictions

As a result of the preparation, amending, supplementation and revocation of legally binding land-use plans the property value of the owners may decrease. On the basis of the FBC, rules of compensation are formulated. Each compensation case needs first an application by the landowner. The landowner has the choice between compensation in money or by transference of land titles.

There are different types of planning damages:

• Compensation where persons have made preparations for the realisation of permissible

uses in justifiable faith in the continuing validity of a legally binding land-use plan

• Compensation due to designations in legally binding land-use plans which make it unreasonable in economic terms for the owner to be expected to retain the property, or to continue to use it in the previous or some other permissible manner
• Compensation on establishment of walking and driving rights and rights of passage or in connection with obligations regarding greenery

• Compensation following change or withdrawal of a permitted use.

On the basis of the FBC, compensation for the loss of a right arising from expropriation is assessed on the basis of the current market value of the plot to be expropriated or of any other subject of expropriation. It is the current market value at the time at which the expropriation authority adjudicates on an application for expropriation that is decisive.

There are no rules for reviewing spatial plans in Germany.

As a general rule of the German planning law, the undeveloped outlying areas should not be built on with the exception of “privileged" developments (e.g. developments serving agricultural activities, specific public infrastructure projects). Those projects must be permitted in rural areas (without a legally binding land-use plan) in compliance with the FBC if public interests do not oppose and ample public infrastructure provision can be guaranteed. Other development projects may be permitted in compliance with the FBC as exceptional cases, provided that their execution and use do not conflict with any public interests and public infrastructure provision can be guaranteed.

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