The preservation designation in the development plan is confirmed by the Higher Regional Court (OVG) Lüneburg as sufficiently determined in spatial terms.

The Higher Regional Court (OVG) Lüneburg has clarified the requirements for the determinacy of a preservation designation in the development plan – not only – for woody plants.

Background: What does § 9 Abs. 1 Nr. 25 b BauGB regulate?

The Building Code (BauGB) enables municipalities to designate in the development planareas for planting as well as the preservation of trees, shrubs and other vegetationSuch preservation designations serve to protect ecologically valuable woody plants, to secure the local character and not least for climate and species protection. In practice, however, disputes frequently arise as to howdeterminedsuch a designation must be. Must every single plant be listed – or is it sufficient to have a graphic designation of an area in the development plan? This is precisely the question that theHigher Regional Court (OVG) Lüneburgaddressed in a recentorder dated 2 September 2025 (Az. 1 LA 30/25).

The facts: Access over protected woody plant area

The plaintiff was the owner of a property developed with a residential building. According to the building permit issued, access to the property was to be from the west. However, the owner unilaterally decided to construct a new access route over an adjacent plot of land. This plot was designated in the development plan as"area with binding designations for planting and for the preservation of trees, shrubs and other vegetation"The building authority ordered the removal of the access road. The plaintiff opposed this order – both in the objection procedure and before the Administrative Court (VG) Osnabrück, but was unsuccessful there. The application for approval of an appeal before the Higher Regional Court (OVG) Lüneburg also failed.

The legal reasoning of the Higher Regional Court (OVG) Lüneburg

Determinacy of preservation designations according to § 9 Abs. 1 Nr. 25 b BauGB

The central question was whether the preservation designation in the development plan was sufficiently determined. The principle of therule of law on determinacyalso applies in building and planning law. Development plans must therefore be formulated and presented in such a way that property owners and authorities can clearly understand the regulatory content. Only when it is clear which areas may be used or protected in which way can those affected conduct themselves accordingly. In this context, determinacy does not mean that every detail – such as every individual tree – must be listed in detail. It is sufficient if the content of the designation can be clearly ascertained by means of the usual methods of interpretation (plan drawing, explanatory statement, supplementary documents). Particularly in the case ofpreservation designations according to § 9 Abs. 1 Nr. 25 b BauGBit is therefore sufficient if an area in the development plan is clearly defined and it is clear from the explanatory statement what type of vegetation is to be protected. The Higher Regional Court (OVG) Lüneburg has expressly confirmed this:

• Therule of law on determinacyrequires that the addressees of a rule can understand what provisions apply.
• In the case of a spatial designation, it is sufficient if it is apparent from the plan documents and the explanatory statement that "valuable woody plant stocks" are to be protected.
• Anindividualisation of each individual treeis not required. Even if several interpretative possibilities exist, it is sufficient that one of them is to be preferred.

Violation of substantive building law:The plaintiff's access violated substantive building law in several respects:

• Contradiction with the preservation designation in the development planwhich excluded the sealing or structural use of the area.
• Violation of § 4 Abs. 4 Satz 1 NBauOin that the access route ran over several building plots.

Proportionality of the removal order:The Higher Regional Court (OVG) Lüneburg considered the removal order to beproportionate:

• The plaintiff had deliberately deviated from the approved access and had constructed an access route in a protected area.
• Her financial interest in maintaining it was not worthy of protection.
• Milder measures, such as a mere monetary payment, were unsuitable, since only the removal would relieve the root area of the protected trees and restore the development plan.

Significance of the decision for practice

The decision strengthens the legal certainty of municipalities and building authorities:

• For municipalities:Preservation designations according to § 9 Abs. 1 Nr. 25 b BauGB are effective even when they are made spatially by means of an outline drawing in the development plan. A detailed individual tree survey is not mandatory.
• For property owners:Anyone who unilaterally erects access routes or other structures in such areas risks removal orders. An appeal to ambiguities in the designation generally has no prospect of success.

Recommendations for action for property owners and municipalities

Property ownersshould carefully review the development plans prior to any structural work and obtain legal advice. Unilateral deviations from approved access arrangements can be expensive.Municipalitiesshould, when drawing up development plans, design their explanatory statement in such a way that it is clearly evident which woody plant stocks are to be protected. Additional inventory maps and assessment maps are not required, but can serve as valuable aids to interpretation. For any questions, the experts in administrative law ofAVANTCORE Rechtsanwältein Stuttgart are available forlegal adviceand, if necessary, representation.