Building in rural areas? Legally problematic – and what role the SEA Directive plays in this.

Many property owners, investors or municipalities regularly face the question: Why is building in rural areas so complicated?

The answer lies in a complex interplay of building law protection mechanisms, environmental law and the mandatory planning transparency towards the public. A particularly important role is played by influences from European legal requirements such as the SEA Directive (Strategic Environmental Assessment). This is exemplified by a recent decision of the Administrative Court of Appeal Munich (VGH München) (judgment of 12.05.2025 – 1 N 22.1934).

1. What is the "rural area" – and why is building in rural areas regulated particularly strictly?

Public building law in Germany can be broadly divided into building regulations law and building planning law. Building regulations law regulates, in simplified terms, the requirements for the building project and the property. It is largely regulated in the state building regulations of the federal states (for example in the LBO Baden-WürttembergLBO Baden-Württemberg). Building planning law regulates, according to § 1 BauGB, the development and other use of land in the municipality.

In building planning according to German building law, the rural area is everything that is not within the scope of a development plan and also does not belong to the so-called developed area (that is, to the existing closed settlement area) (§ 35 BauGB). In most cases, these are land used for agriculture, forestry or naturally – in short: the open countryside.

Building in rural areas is legally restricted for several reasons:

• Protection of the natural environment and landscape character
  The rural area should not be scattered with settlements – both for ecological reasons and in order not to impair agricultural use.
• Avoidance of so-called "scattered settlements"
  Uncontrolled individual development outside of municipalities would in the long term lead to increased development costs, environmental pollution and structural problems.
• Precedence of public interests over private building wishes
  Only certain privileged building projects (for example by farmers for their operations) are permitted in rural areas.

Therefore, to create building rights in rural areas, a development plan must be drawn up – often in expedited proceedings, but under strict legal requirements.

2. Particular challenge when building in rural areas: Environmental assessment and SEA Directive

Anyone who wants to develop building areas in rural areas must regularly carry out a strategic environmental assessment (SEA) – governed by the EU Directive 2001/42/EG ("SEA Directive"). This Directive obliges the member states to conduct a drawing up of plans and programmes – including development plans – to systematically assess environmental impacts and to involve the public.

What does this mean in practice?

• Before every building planning it must be examined whether the project can have significant impacts on the environment, nature, water, air, climate or landscape character.
• If it is decided to not carry out an environmental assessment, the public must be comprehensively informed, including a statement of reasons for this decision.
• Mere notification"No significant environmental impacts are expected" is legally insufficient. It must be disclosedwhy this assessment is being made in this manner – transparent reasoning for the decision is mandatory.

3. What happens if these requirements are not met?

A current example demonstrates the consequences: The Bavarian Administrative Court of Appeal (VGH Bayern) has just declared a development plan invalid in the aforementioned decision of 12.05.2025 because the municipality failed to properly disclose the reasons for dispensing with an environmental assessment. The documents were only partially or not at all published on all prescribed municipal notice boards – a clear breach of federal and EU law.

The result: The entire development plan was declared unlawful and thus invalid. For the affected municipality, this meant: significant loss of time, renewed planning effort – and legal uncertainty for all investors and property owners.

4. What does the judgment mean?

Anyone who, as a property owner, investor or municipality, plans a project in the open countryside or is faced with new residential development must ensure the utmost care in the procedure:

• Early examination of whether environmental assessments are required
• Transparent documentation of the decision-making process
• Careful, customary public disclosure of the planning documents – including in formal terms

AVANTCORE Rechtsanwälte in Stuttgart can support you here with expertise and know-how in administrative law throughout the entire procedure – whether on behalf of project developers who are seeking a legally secure planning procedure, or on behalf of affected parties who wish to defend themselves against potential impacts from new construction projects.

Conclusion

Building in the open countryside is not generally prohibited. However, it is a legally demanding exception. Without proper procedural conduct, particularly regarding environmental law issues and public participation, every development plan is at risk of failure.