Administrative Court (VG) Schleswig: A roof terrace that deviates from the local design regulations in the development plan is inadmissible

Roof terraces are modern and popular, but must nonetheless comply with design regulations in the development plan, according to the Administrative Court (VG) Schleswig.

Problem – Modern architecture meets building and planning law

The construction of roof terraces is becoming increasingly popular. They offer additional outdoor space, increase the value of residential properties and are considered architecturally modern. But what happens when urban planning and design requirements stand in the way of this wish? This was precisely the subject of a decision of the Administrative Court (VG) Schleswig of 22 May 2025 (Az.: 8 A 10022/21).

The central question was whether a roof terrace is permissible if the development plan allows only certain roof forms such as gable roofs or hip roofs. The court dismissed the builders' action for the granting of a building permit – with clear legal considerations regarding the application and effect of local building regulations, so-called design regulations.

What exactly was at issue? Builders fail with application for building permit for roof terrace

The plaintiffs wanted to subsequently legalize an already partially constructed residential building in St. Peter-Ording. Part of the building application included, inter alia, a terrace on the flat roof of an annex between the main building and conservatory. This was referred to by the plaintiffs as a "balcony", but was actually used as a roof surface.

The development plan, specifically the local building regulations in the version of the 2nd amendment of 20 May 2023, however prescribed a roof form requiring a permit: only gable, tent, hip or gambrel roofs were permitted for main buildings. Flat roofs were only permitted for garages, carports, conservatories and ancillary structures – but not for living spaces or roof terraces.

The building authority rejected the application. An application for a deviation pursuant to § 71 Landesbauordnung Schleswig-Holstein (LBO SH) was also not filed. The plaintiffs then went to court and relied on an alleged loss of function of the development plan, claiming that several buildings with similar flat roof constructions allegedly exist.

Legal assessment by the VG – Binding effect of design regulations and absence of application for deviation

1. Right to a building permit (§ 72 Abs. 1 S. 1 LBO SH)

Pursuant to § 72 Abs. 1 Satz 1 LBO SH, a building permit must be granted if no public law provisions stand in the way of the project. The decisive factor here is the development plan within the meaning of § 30 Abs. 1 BauGB.

Since the property fell within the scope of a qualified development plan, the project had to fully comply with its provisions. However, the proposed roof terrace conflicted with the local building regulations on roof design (§ 84 Abs. 1 LBO SH).

2. Design regulations – Legal nature and binding effect

Local design regulations, as local building regulations, form part of the development plan or are enacted as an independent regulation pursuant to § 84 LBO SH. They serve to ensure a certain local and landscape character and determine, among other things:

• permissible roof forms and roof pitches
• materials and colours
• façade design or ridge direction

In the present case, section 2.1 of the local building regulations expressly provided that roofs must be constructed in a specific form (gable, hip, etc.). Flat roofs are permitted only for subordinate ancillary structures. Roof terraces constitute, from a building law perspective, a flat roof – even if they are accessible and fitted with a railing.

The VG relied, inter alia, on established case law (e.g. BayVGH, Beschl. v. 09.08.2021 – 15 CS 21.1636), according to which a roof terrace is typically to be assessed as a flat roof – regardless of actual use or visual appearance.

3. No deviation due to absence of application (§ 71 LBO SH)

A formally submitted and reasoned application for a deviation pursuant to § 71 Abs. 1 LBO SH was not part of the proceedings. Such a deviation would, however, have been the only way to permit the project despite its conflict with the roof form.

Neither may the court examine a deviation without an application, nor was it permitted to itself enter into a discretionary decision of the building authority. Any claim based on self-binding of the administration also fails – because no corresponding administrative procedure was conducted.

4. No loss of function of the development plan

The court also rejected the argument that the development plan had become functionless due to factual developments. Although there were other buildings in the planning area with impermissible roof forms, these were predominantly to be classified as ancillary structures or had been erected without a permit. Eleven unlawful deviations among over 100 buildings were not sufficient for the court to conclude that there was a complete loss of control in the sense of the highest court case law (BVerwG, Urt. v. 24.04.2024 – 4 C 2.23).

Digression: What does "loss of function of a provision in a development plan" mean?

The plaintiffs in the proceedings before the Administrative Court (VG) Schleswig had argued that the local regulations on roof form had become "functionless" because several flat roofs or roof terraces existed in the planning area. This line of argument is subject to high legal standards – and was rightly rejected by the VG Schleswig.

Clarity on the criteria of the so-called loss of function of development plan provisions has been provided by the Federal Administrative Court in its cited fundamental decision of 24.04.2024 (Az.: 4 C 2.23):

1. Concept and legal significance

A provision of a development plan does not automatically become ineffective due to lapse of time or factual disregard. It only ceases to apply if:

• its implementation is excluded for an unforeseeable time, and
• this is obvious, i.e. it withstands any legally and substantively founded examination (cf. Rn. 22 of the reasoning of the decision).

2. Standard of obviousness

The loss of regulatory capacity must be so clear and irreversible that reliance on the continued validity of the regulation is no longer worthy of protection. It is not sufficient if an average citizen can recognize structural deviations – the decisive factor is a professionally informed assessment of the actual and legal developments.

3. Scope of consideration

The BVerwG confirms that the Field of view limited to a sub-area of the development plan – but only if the plan is expressly or conceptually intended to develop an independent urban planning effect precisely in this sub-area.

4. Applicability to the decision of the VG Schleswig

It was precisely these standards that the VG Schleswig applied: Although individual buildings in the planning area had flat roofs, the court found in the overall view of over 100 buildings and only eleven established deviations no complete loss of control. Neither was it manifestly apparent that the regulation could no longer be realised. In complete agreement with the new highest-ranking case law of the BVerwG, the assumption of redundancy was thus dogmatically impermissible.

Conclusion for practice – roof design is not a "detail", but a requirement for approval

The decision illustrates the importance of local design regulations in the planning of construction projects. In particular, roof terraces are regularly assessed by courts as impermissible flat roofs if roof design is strictly regulated. Even optical design or subordinate size do not protect against the requirement for approval.

For building owners and architects, this means: if you wish to build in an area with active design regulations, you should check the requirements early (or have them checked) and, if necessary, apply for a deviation in due form.

Are you planning a roof terrace or a modern residential building?

We review your building plans for approvability, advise on design regulations and represent you in approval procedures or before court. Avoid costly delays and legal risks – contact your experts in Administrative Law at AVANTCORE Rechtsanwälte in Stuttgart.