Bavarian Administrative Court of Appeal confirms boundary development in inner courtyard: neighbouring party action against underground car park entrance fails definitively (Order of 15 August 2025)

The Administrative Court of Appeal Munich has decided: a neighbouring party action against the underground car park entrance of a new residential complex in the inner courtyard was unsuccessful – boundary development without distance zones is permissible.

The Problem

In German major cities, the intensification of development in inner courtyards has long become one of the central issues of modern urban development. Where previously open spaces provided light, air and neighbourly relations, residential complexes with underground car parks and small-scale building structures are increasingly emerging. Such projects inevitably lead to conflicts with neighbouring parties, who fear impairment of their property, in particular due to lack of light, loss of privacy or the "oppressive effect" of new structures. Legally, the distance zone rules under the state building codes, for example the Bavarian Building Code (BayBO) in conjunction with the provisions of the Building Code (BauGB), play a key role. The Bavarian Administrative Court of Appeal (VGH Munich) had now, withOrder of 15 August 2025 (Az. 9 ZB 23.2289), the opportunity to clarify the principles for intensification projects in unzoned inner areas pursuant to§ 34 BauGB. The case concerned a large-volume residential complex with 38 residential units and an underground car park, which was to be built in the inner courtyard of a closed block-front development. A neighbouring party whose own building is itself boundary-sited initiated proceedings against the permission. After the Administrative Court of Ansbach had already dismissed the action, the neighbouring party sought leave to appeal. The VGH Munich, however, rejected this – the action thus ultimately failed.

What was at issue precisely?

The developer planned a residential complex comprising four buildings with a total of 38 flats and an underground car park in a densely developed inner courtyard of a typical block-front development with four to five storeys. The project was not entirely new, but was part of an approved scheme that had been amended by means of a modification to the original application. The neighbouring claimant felt significantly impaired. In particular, he contended that the required distance zones were not being maintained, that he would be "walled in" by the new development, that unacceptable sight lines into his flat would be created and that some of his windows – which had previously provided light and air – would be effectively walled up. The Administrative Court of Ansbach rejected these objections. Against this judgment, the neighbouring party applied for leave to appeal to the VGH Munich. His aim was to involve a second instance with the matter in order to still achieve revocation of the permission. The Administrative Court of Appeal, however, did not allow the appeal, as there were no serious doubts as to the decision of the Administrative Court and no matter of fundamental importance was at issue.

The legal reasoning of the VGH Munich

Distance zones and boundary development

Central to the question was whether the planned boundary development in the inner courtyard was permissible under distance zone law. Pursuant to Art. 6 BayBO, there is in principle a requirement to keep distance zones clear in front of external walls in order to ensure lighting, ventilation and fire protection. However, the BayBO provides for exceptions if a building project fits into an environment characterised by boundary-sited construction. The VGH established that the immediate surroundings exhibit both open and closed construction methods. This is thus a heterogeneous environment in which planning law provides a "choice": developers may opt either for an open or for a closed construction method. If they choose the closed construction method, the obligation to maintain distance zones along the boundary is waived. Since the disputed inner courtyard was already largely characterised by boundary-sited development – the claimant's own building also stands on two property boundaries – the developer was permitted to construct its project boundary-sited. There was thus no infringement of neighbouring party-protective distance zone rights.

Privilege for underground car park entrance

The covered underground car park entrance was also covered by the action. However, Art. 6 para. 7 BayBO provides a privilege in this case: certain small structures, including accesses to garages, may be erected in distance zones if they do not exceed certain maximum dimensions. The project complied with these requirements – a wall height of no more than three metres and certain length limitations. The VGH saw no accumulation with other provisions that could establish inadmissibility.

Duty of consideration

In addition to the distance zones, the claimant relied on the general duty of consideration. He contended that the new buildings resulted in unreasonable shadowing and impaired privacy through sight lines. Furthermore, his windows at the property boundary would be walled up. The VGH Munich rejected these arguments as well. The "demand for consideration" has its limits when the affected party itself has built to the boundary. The claimant could therefore not rely on the fact that the new project would deprive him of light. Moreover, the windows in question were already marked with the notation "Openings subject to withdrawal". Thus, there was from the outset no permanent protection of existing rights. The claimant could therefore not rely on the fact that these windows would provide permanent sight lines or lighting. The court also rejected the alleged "oppressive effect". Although parts of the new buildings did overhang the existing building, the building mass impact was relativised by staggering and setbacks. No "walling in" occurred. Finally, the VGH also ruled out excessive interference with privacy: in densely developed inner cities, sight lines are to a certain degree unavoidable and reasonable; own protective measures such as curtains or blinds were reasonable to expect of the neighbouring party.

Fire protection issues

Fire protection objections could also not help the claimant. These were not even subject to review in the simplified permission procedure under the BayBO. The fire protection certificate is provided in a separate procedure. Since there were no concrete indications of breaches, there was no infringement of the duty of consideration in this respect either.

Significance of the decision for practice

The judgment is of considerable significance for developers and neighbouring parties alike. For developers, it shows that in heterogeneously developed inner courtyard locations, boundary development is often permissible without the need to maintain distance zones. Especially for intensification projects, this is an important door opener. Underground car park accesses can be implemented with legal certainty through the legal privilege in, for example, Art. 6 BayBO. For neighbouring parties, the decision makes clear that defences in tight inner-city situations are limited. Whoever has built to the boundary themselves can regularly not demand that the neighbouring developer maintain distance. Windows in boundary walls with "Openings subject to withdrawal" provide no permanent protection. And reliance on the duty of consideration also reaches its limits where urban density and mutual demands are the rule. As a specialist law firm foradministrative law, AVANTCORE LawyersAVANTCORE Rechtsanwälte in Stuttgart has extensive experience with intensification projects and neighbouring party disputes. We know what matters in assessing the surrounding development under § 34 BauGB, and how distance zone and duty of consideration issues must be strategically prepared. We advise developers on structuring their projects early on so that they are capable of receiving permission and can be defended in court. For neighbouring parties, we realistically assess what chances of success an action against a building project actually has, and develop tailor-made strategies – whether judicial proceedings or an out-of-court solution. If you yourself are facing an inner courtyard project or feel impaired by an intensification development, you should obtain legal advice early.