Outdoor catering: Higher Regional Court of North Rhine-Westphalia confirms stricter requirements in case of repeated noise complaints

The Higher Regional Court of North Rhine-Westphalia (OVG NRW) in Münster has decided by order of 09.04.2025 – Az. 4 B 500/23 on the admissibility of stricter requirements for outdoor catering operations.

What was the case about?

Two operators of a restaurant in an inner-city mixed-use district challenged an administrative order in summary proceedings. For outdoor catering, amongst other things, a nighttime closure from 22:00 hours was ordered and the keeping open of doors between 22:00 hours and 06:00 hours was prohibited. The background was numerous neighbour complaints and findings by the authorities of substantial noise emissions during night-time hours.

What did the court decide?

The Higher Regional Court of Münster dismissed the operators' appeal. The extension of closure times and the prohibition on keeping doors open during night-time were lawful. The measures served to protect night-time rest in a heavily built-up residential environment and were proportionate.

Central considerations of the court

• Operator duty regarding catering noise:
  A restaurant operator is obliged to prevent avoidable noise pollution – not only through the operation itself, but also through the behaviour of his guests. This includes maintaining an effective operational concept that also ensures compliance with night-time rest regulations.
• TA Lärm as the standard:
  The reference value of 45 dB(A) at night is binding even for non-licensed catering operations such as outdoor catering. The multitude of documented violations – including music into the early morning hours and use of outdoor areas substantially exceeding the permitted extent – justify administrative action even without prior noise assessments.
• No milder measure apparent:
  Despite years of complaints and multiple discussions with the regulatory authorities, the operators had failed to implement an effective noise prevention concept. Even the installation of a sound limiter and the employment of a doorman did not lead to an improvement in the situation.
• Freedom of profession versus night-time rest:
  The interference with the operators' freedom of profession is justified by the overriding public interest in protecting night-time rest. The economic success of an operation does not justify continued disturbance of the peace.

Our recommendation for affected catering operations with outdoor catering

Are you facing requirements due to noise nuisance? Or have such requirements already been imposed against you? We recommend the following steps:

• Review your catering licence with regard to provisions on operating hours, outdoor catering and music.
• Develop a robust operational concept that documents compliance with TA Lärm – if necessary by means of acoustic expert assessment.
• Respond promptly to complaints and work out practical solutions in dialogue with the authorities before formal orders are issued.
• Obtain legal advice from a qualified lawyer at AVANTCORE Rechtsanwälte in order to effectively challenge disproportionate requirements or to avoid them in a legally sound manner.

AVANTCORE Rechtsanwälte – we can Administrative Law.