Workers' accommodation in the open countryside: The BayVGH confirms the rejection of a large-scale glasshouse with residential facility

A building permit for a large-scale production glasshouse with integrated workers' accommodation in the open countryside was rightly refused pursuant to a decision of the BayVGH.

What was the issue?

The Bavarian Administrative Court of Appeal (BayVGH) has decided by order of 04.07.2025 (Az. 9 ZB 24.663) that a building permit for a large-scale production glasshouse with integrated workers' accommodation in the open countryside for seasonal workers was rightly refused. The central question was whether the planned accommodation serves the operation within the meaning of § 35 BauGB and thus is permissible on a privileged basis. The court answered this in the negative – with a comprehensible justification.

This is how the factual situation presented itself to the court

A horticultural company applied for a building permit for a project comprising 57,350 m² on a plot of approximately 10 hectares in the open countryside. The plan included, inter alia:

• a production glasshouse of 42,600 m² for snack paprika,
• as well as workers' accommodation with 26 apartments (for two persons each) with a total area of 451 m².

The accommodation was to be permanently and alternately occupied by seasonal workers. The plot was approximately 11 km away from the existing operation, for which no privileged on-site accommodation existed. The authority rejected the permit. By dismissing the action for mandamus to issue the building permit, the Administrative Court (VG) Ansbach confirmed the authority's decision. The claimant unsuccessfully applied for the admission of an appeal at the Administrative Court of Appeal (VGH) Munich.

The legal considerations of the BayVGH

The Court of Appeal confirms the first-instance judgment and rejects the application for admission of an appeal. Central to the analysis is the interpretation of the term "serves" within the meaning of § 35 Abs. 1 Nr. 1 and Nr. 2 BauGB:

1. Principle: Protection of the open countryside takes precedence

Building projects in the open countryside should generally not take place. Exceptions are only possible under narrow conditions – for example as a "privileged project" – which also applies to agricultural and horticultural operations.

2. No "necessity" of the workers' accommodation for the operation

The court denies that the workers' accommodation serves the operation:

• The operation is highly technologically advanced, almost entirely weather-independent and plannable.
• While accommodation would be "beneficial", it is not necessary for the specific operational processes.
• Only if the project were necessary in a particular way could it be considered as serving the operation.
• Economic advantages such as cost savings or shorter distances are not sufficient.

"Necessity" presupposes a particular operational requirement – mere beneficial effect is not sufficient. (para. 12 of the order of 04.07.2025 (Az. 9 ZB 24.663))

3. No "privilege" despite horticultural operation

The project is not privileged under § 35 Abs. 1 Nr. 2 BauGB:

• Glasshouse production is largely plannable and automated.
• Necessary workers do not need to be permanently accommodated on site.
• The provision of workers' accommodation in the open countryside does not serve the specific requirements of the horticultural operation, but rather is designed for general economic efficiency.

4. Other project fails due to public interests

Since privileged status is excluded, the building project must be assessed as an "other project" within the meaning of § 35 Abs. 2 BauGB. However, this:

• is likely to promote scattered settlement (§ 35 Abs. 3 Satz 1 Nr. 7 BauGB),
• and constitutes a substantial interference with the landscape character.

The view of the defendant authority was confirmed by the first-instance judgment and the BayVGH.

Employers in horticulture or agriculture should plan building projects in the open countryside early and strategically.

The decisive factors are:

• Workers' accommodation in the open countryside must be functionally indispensable for the specific operation. Mere business-economic benefit is insufficient.
• A certain spatial distance from the existing operation (here: 11 km distance!) can be decisive against privileged status.
• Anyone wishing to permanently erect residential buildings for seasonal workers should consider a project-specific land-use plan in agreement with the municipality.

Before submitting your application, have AVANTCORE Rechtsanwälte as experts in administrative law in Stuttgart review whether your building project in the open countryside can be privileged at all. Otherwise, expensive planning errors threaten – or as in this case, a final judicial rejection.

We have already addressed legal issues in connection with building projects in the open countryside on several occasions:

The VGH Munich has confirmed an immediately enforceable order for removal of an illegal storage yard in the open countryside containing substances that endanger the environment.

Building in the open countryside? Legally problematic – and what role the SEA Directive plays in this.